For those who decided to freeze themselves in Chicago over the next few days rather than attend the much more pleasant AALS venue, make sure to check out this session tomorrow morning: Understanding Moral Repugnance in Markets. It features some great speakers (and there's me!) and discussants.
I've copied the program below (which may or may not work, given the idiosyncrasies of typepad) but you can follow the link to the program, with papers and abstracts, here.
Understanding Moral Repugnance in Markets
Friday, Jan. 6, 2017 8:00 AM – 10:00 AM
Hyatt Regency Chicago, Grand Ballroom CD North
Hosted By:AMERICAN ECONOMIC ASSOCIATION
Chair:Kimberly Krawiec, Duke University
The impact of pathogen-disgust sensitivity on vaccine and GM food risk perceptions: Some evidence for skepticism
The ABA has provided a ton of data on law school job placement and I've tried to summarize it here - comparing the placement rate ranking with the U.S. News ranking, and providing actual placement numbers. The numbers set out here represent the percentage of graduates in the class of 2015 who found full-time long term positions (JD required or where a JD was an advantage) within nine months after graduation. This is the number many ranking organizations use, though I recognize that there are other ways to slice the data. As I note below, I have excluded law school funded positions.
This ranking uses the freshest data currently available and - compared to what you can find for pretty much any other discipline outside of law - a pretty damn good data set. We only wish business schools and other similar programs would give this sort of guidance to applicants.
I think a big takeaway is that the US News ranking doesn't actually predict how well graduates of a given school will do on the job market. One conclusion from this data is that any school recruiting solid students (as opposed to students who probably don't belong in law school) can deliver those students good job outcomes if it trains them well and provides good support from bar prep through career planning. (It helps to be in a region with jobs or a region that is not a net importer of law grads.)
It's also worth pointing out that this chart suffers from an infirmity it shares with US News: it tends to over-state the gaps between law schools. Another way to read this chart is to think in clumps - schools in the +/- 85% placement range; those in the +/- 75% placement range; etc. But I do think there may be real differences between schools with 80% rates and those with 65% rates.
This ranking doesn't get at salaries - though, having looked at the data, I have a strong sense that there are really only about 15 schools where more than 33% of the graduating class scores a large firm job. US News is actually pretty good at this element of ranking: if you want a big firm job, the US News top 15-20 is a reasonably good guide. But US News ceases to be very predictive of large firm placement after that point. This list also has anomalies: Yale is #20, but that probably has more to do with the choices that students made rather than the options they encountered. And Georgetown? My theory is that their career strategies office is good for students seeking big firms, but has work to do with the other 63% of the class.
The schools with the biggest gaps between this ranking and US News? Figure that out for yourself - there are some whoppers!
Update: I've decided that it would be more accurate and useful to round placement results to the nearest whole number and describe virtual ties as ties. As I discuss above, my goal is to provide information without overstating gaps between schools. Schools that are tied are listed in order of their precise rank. With this change, Yale is now #18. In this analysis, I excluded law school funded positions - consistent with US News - in large part because it is impossible to determine how many of these graduates would have been able to secure long-term full-time employment in the absence of law school assistance.
Update 2: A kind reader has alerted me to at least one error - the numbers provided to the ABA by South Texas on their form are inconsistent with the numbers set out in the ABA spread sheet. I am not going to change anything yet, but I hope that over the next day or two, I can identify any other conflicts between the forms and the spreadsheet. If there is an error or two, I can fix that easily. If problems are more pervasive, I'll pull and rework it entirely. For now, please note that based on the employment form submitted to the ABA, South Texas seems to have a 62% placement rate, rather than a 54% rate, which puts it at 152 rather than 172.
Update 3, Nov. 30, 12:30 pm: I have adjusted the chart to reflect what I expect are accurate numbers. As I discuss in this post, there are discrepancies between data reported by the ABA in individual school summaries and in the overall compilation spread sheet. This list reflects the numbers reported by schools in their individual school summaries. These changes shifted the rankings a bit. I have inserted asterisks after schools whose ranking changed after switching to the data provided on the individual school summary. In a later post, I will detail the changes. I believe the numbers are now as accurate as I can make them.
Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labour force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women's discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender.
A paper by a group of Duke law school students recently posted to SSRN is featured by Matt Levine in BloombergView today. Says Levine:
Meanwhile in less-sovereign debt, the other day I mentioned that some law students may have found a solution to Puerto Rico's debt problems. Here it is; it relies on provisions in the Puerto Rico Civil Code to force creditors to come to the table, negotiate in good faith, and obtain equal benefits for all creditors. It's sort of an effort to construct a bankruptcy regime out of some vague equitable statements in existing law. I like it! Elsewhere here is a report on the "Origins of the Puerto Rico Fiscal Crisis."
I do not know whether to be jealous or proud . . . okay, decision made: Im proud!
Congratulations to Duke Law students Ryan Alexander Berger, Felix Aden, and Sigurdur K. Tryggvason!
The event is free and open to the public, and I’ve copied the event information below. Although I’ll be back after the event with updates on the substance, I expect that Jason will take the position, consistent with his book, Markets Without Limits, that “if you may do it for free, you may do it for money.” I imagine that Peggy, consistent with her book, Contested Commodities, will argue that there should be some limits on markets, when necessary to protect nonmarket ideals important to personhood.
I plan to leave the normative debate to those two and take a more descriptive approach: regardless of whether or not market transactions actually degrade relationships and values, most people continue to believe that they do, at least in certain contexts. As a result, market advocates need to account for, and even accommodate, those concerns if the market is to exist at all.
Students of markets from all disciplines are increasingly turning their attention to the cultural and psychological factors that affect market structure. In traditionally taboo markets, of which reproduction surely is one, those factors include cultural understandings of the moral limits of markets and our collective level of comfort with fully commodifying and subjecting traditionally sacred items and activities to the marketplace.
While it is easy to dismiss these cultural understandings as romantic, silly, or delusional, this severely underestimates their importance, not just to society, but to the market itself. By reframing traditionally unacceptable behavior as a more palatable and familiar transaction, society is able to accept a market that is otherwise socially problematic or even repulsive. Market architects ignore these cultural understandings--and, in particular, societal conceptions of the ethical limits of markets--at their peril. In a world unwilling to embrace the sale of female reproductive capacity for merely a price, the "priceless gift" of egg donation allows a market to flourish that otherwise might stagnate under the weight of social disapproval.
If you may do it for free, may you do it for cash? For instance, may you buy and sell votes? How about buying and selling kidneys? Or buying and selling children? What should be off-limits to the market economy? Or do genuinely free markets permit everything? Scholars representing a wide range of views discuss the issues.
- Jason Brennan, Associate Professor of Strategy, Economics, Ethics & Public Policy, Georgetown University
- Margaret Jane Radin, Professor of Law, Emerita, University of Michigan Law School & Distinguished Research Scholar, University of Toronto Faculty of Law
Our communications folk were out in full force for Al Roth’s lecture on Wednesday and have already posted some nice photos from the event and uploaded a video of the lecture to YouTube. I’ve included a few below.
As I mentioned in my last post, 2012 Nobel Prize winner Al Roth visited Duke Law School this week as a guest of the Law & Markets project. We basically worked Al to death while he was here – he gave three talks in a single day: a casual morning discussion over coffee with my Taboo Trades students and select faculty; a lunchtime public lecture about his book, Who Get’s What And Why: The New Economics of Matchmaking and Market Design; and an afternoon faculty workshop on Global Kidney Exchange (sometimes called Reverse Transplant Tourism). And that’s not counting the breakfasts, lunch, and dinner he had with faculty who wanted to hear even more about market design. I was exhausted from just watching him in action.
Those who know Al won’t be surprised by that, I suspect. As I’ve discussed before in prior posts (here and here), Al is deservedly well-known for his generosity in sharing his time and expertise with students, colleagues, and even know-nothings like me.
Whether by design or happy accident (I’m not sure which, though he is a market designer, hmm . . . ) there was little overlap in the content of the three talks, though each one built on the other and someone who attended all three (as many of us did) could gain new insight into market design at each stage. The morning session focused primarily on labor markets, especially the judicial clerkship market and market for summer associates and how that compared to the market for new medical residents. As Al discusses in the book, the market for judicial clerks, unlike the market for medical residents, is one in which attempts to prevent market unraveling have been largely unsuccessful. We talked a bit about why that might be and it was interesting to have that discussion among someone who has studied that market (Al), current market participants (the students), prior participants (law professors) and those who have negotiated some of the earlier (failed) agreements – law school administrators.
The lunch talk focused on the concept of market design more generally, but with an emphasis on school choice, kidney exchange, and high frequency trading as examples. The afternoon session was devoted to Al’s current work on repugnant transactions and Global Kidney Exchange, an issue we have both worked on with Mike Rees.
It was a really special day all around, but I was especially happy to get a chance to share Al in person with my Taboo Trades students. They have already spent more time thinking about repugnant transactions than most people ever will, and it was great for them to have a chance to meet “The Pied Piper of Repugnance,” as I referred to Al some years ago, in person. We memorialized his visit with us in the photo above.
I blogged recently about our Law & Markets program (and earlier here) and tomorrow is one of the highlights of the year – 2012 Nobel Prize winner Al Roth is visiting Duke Law as a guest of the Law & Markets project and will deliver a public lecture about his work and his new book, Who Get’s What And Why: The New Economics of Matchmaking and Market Design. He’ll also give a faculty workshop on global kidney exchange. If you’re in the triangle area, stop by for one or both events (see the attached flyers for details).
Lola v. Skadden Arps has settled (reports here and here). Lola is a wage-and-hour case with wide implications for the legal profession. To recap (see my previous post on the Second Circuit’s recent decision here), David Lola, a lawyer licensed to practice in California, took a job as a document reviewer for Skadden Arps in a large MDL venued in a federal court in Ohio. He was placed in that position with Skadden by a staffing agency, Tower Legal Staffing. (Tower Legal provides attorneys and paralegals to law firms on a contract basis, and thus remained Lola’s direct employer during his period of service to Skadden.) Lola spent 14 months reviewing documents in North Carolina for the case; his Complaint alleged he typically worked 45-55 hours per week. He was paid $25 per hour, without overtime.
After the engagement ended, Lola sued Skadden and Tower Legal in a Fair Labor Standards Act “collective action,” which is the FLSA’s statutory version of a class action (see 29 U.S.C. § 216(b)). Lola claimed that he and all those similarly situated were entitled to time-and-a-half for work in excess of 40 hours per week.
The FLSA exempts from overtime requirements any “employee employed in a bona fide professional capacity,” including “any employee who is the holder of a valid license . . . permitting the practice of law . . . and is actually engaged in the practice thereof . . . .” 29 C.F.R. § 541.304. Skadden and Tower Legal argued that Lola’s document review responsibilities constituted “the practice of law” within the meaning of the FLSA and supporting regulations, and he therefore was exempt from overtime pay.
Lola admitted that he was licensed to practice (the fact that it was in a jurisdiction with no connection to any aspect of his work doesn’t matter under the FLSA), so the wage-and-hour question boiled down to whether or not he was “actually engaged” in the “practice of law.” Lola alleged that his responsibilities as a document reviewer were completely mechanical and devoid of judgment—that he was given a list of key words and names and told to “code” documents in a specified way if those words or names appeared in the document. Period. On a motion to dismiss (where these allegations had to be taken as true), the District Court found that these activities constituted “the practice of law.” The Second Circuit reversed, finding that work that ministerial and rudimentary did not comprise the practice of law, though more typical document review work requiring “a modicum of judgment” likely would. (As related in my earlier post, most document review jobs do involve some degree of judgment in determining documents’ responsiveness to a request or potentially privileged status, judgments that a fair reading of the appellate opinion suggests would qualify as “the practice of law” under the standard the decision articulates. The Second Circuit agreed with the District Court that the FLSA borrows the law of the state governing the services at issue to determine whether they qualify as “the practice of law,” which in this case was North Carolina, though North Carolina’s definition is typical in most respects.) The case was remanded to determine whether Lola’s job required him to be the automaton he alleged.
I'll address the settlement and what it does and doesn't tell us about the future after the jump.
The attention on arbitration also seems a bit disproportionate, given the nearly-infinite ways that businesses use contracts to extract hidden value from employees and customers: incomprehensible warranty disclaimers, clauses limiting liability for damages, clauses requiring claimants to bring claims in remote and therefore expensive places, etc. Even if competition results in somewhat lower prices, that's cold comfort for those on whom the costs fall most heavily. For all its high-mindedness, the NY Times is no different. Have a legal claim arising out of Times digital products? The Times graciously lets you file a lawsuit, but you'll have to go to New York to do it, wherever you happen to live.*
I assume the NYT timed the series roughly to coincide with the Consumer Financial Protection Bureau's anticipated decision to regulate the use of arbitration clauses in consumer financial contracts. One likely regulation would ban the use of class action waivers. For better or worse, private individual and class action lawsuits have come to occupy a significant place in the U.S. regulatory system. Yet the Supreme Court has graduallyinterpreted the Federal Arbitration Act to let businesses decide whether they want to participate in this system; many have opted out. This is an extraordinarily consequential development, and political actors should assume responsibility for deciding whether to embrace or reject it. So whatever the CFPB ultimately does, the decision will be noteworthy, and welcome, as one of the too-rare moments when politically-accountable actors finally take responsibility for deciding the limits of arbitration.
Andre L. Smith (Widener) has just published a new book, Tax Law and Racial and Economic Justice: Black Tax. Here is the publisher's description:
No study of Black people in America can be complete without considering how openly discriminatory tax laws helped establish a racial caste system in the United States, how they were designed to exclude blacks from lucrative markets and the voting franchise, and how tax laws extracted and redistributed vast sums of black wealth. Not only was slavery nearly a 100% tax on black labor, so too was Jim Crow apartheid and tax laws specified the peculiar institution as “negro slavery.” The first instances of affirmative action in the United States were tax laws designed to attract white men to the South. The nineteenth-century Federal Tariff indirectly redistributed perhaps a majority of the profits from slavery from the South to the North and is the principle reason the Confederate states seceded. The only constitutional amendment obtained by the Civil Rights Movement is the Twenty-Sixth Amendment abolishing poll taxes in federal elections. Blending traditional legal theory, neoclassical economics, and a pan-African view of history, these six interrelated essays on race and taxes demonstrate that, even in today’s supposedly post-racial society, there is no area of human activity where racial dynamics are absent.
Professor Smith's book is an important contribution.
Al Roth has an interesting post about law internships in Israel (and about professional licensing – particularly lawyer licensing – more generally), based on a recent Ynet story. Apparently Israel has extended the mandatory internship period from one year to two.
Internships and pre-licensing employment under other names serves multiple purposes. One purpose is to train future professionals. Another might be to limit entry into a profession. Both things seem to be at issue with law internships in Israel.
While senior lawyers welcome new regulations announced by Justice Minister Shaked, law students complain internship is akin to 'modern slavery.'
Justice Minister Ayelet Shaked elaborated in remarks at the annual conference of the Israel Bar Association:
"I decided to extend the length of the required internship period to two years believing that law students will be much better qualified and prepared to take their bar exam, and will have to show a great deal of dedication in order to become lawyers," Shaked said.
"This will lead to a decline in the number of lawyers, and an increase in their professional expertise," she concluded.
Although the move was praised by senior lawyers, law students had a different take. Said Or Gavish, who is about to start his law studies at Tel Aviv University:
The internship period is difficult and tiring, and according to what I have heard, you become a type of 'modern slave,' while doing secretarial work for a meager salary," he added. "It’s a cheap and efficient labor force, because without the firm's approval you can't become a lawyer."
From movies to policy debates, veterans are a perennial image in the American psyche. At the law school, the most notable presence of the military are recruiting officers (e.g., JAG), and to a lesser extent, student organizations (e.g., student veterans organizations, military justice societies) and the occasional veteran clinic. There is, however, no comprehensive in-depth study of how law schools accommodate veterans or how various institutional platforms operate (in the next few months, I will post an excel-based study mapping all these initiatives at law schools with some brief comments). While researching this topic and speaking with student veteran groups, military personnel and therapists, certain themes have emerged that might provide law school administrations with some guide for developing 'best practices' towards students serving or having served in the military.
The core challenge seems to be that there tends to be a lack of awareness by law school admission offices about the psychological and social challenges that veterans face, in civilian life or at school in particular. Below is a brief list of some common blind spots and potential reforms.
The lawyers are out of the starting gate, but there's still time to predict the outcome. Below is a survey on how the Dewey trial is going to turn out (see my post from Friday on the beginning of the trial here). The survey will be open for the next week, until midnight on Monday, June 8. Results will be shared that week if there are enough predictions to make it meaningful.
Scroll down and make sure you complete the survey as to each of the three defendants!
Larry Cunningham of George Washington Law School is preparing the second edition of Contracts in the Real World.The book is outstanding and a great idea -- and I imagine it should be replicated for a bunch of the courses in the curriculum. I'm thinking wills and trusts in the real world would be a big hit!
The texts for today’s homily are from Guys and Dolls and The Little Mermaid. Our first subject is Big Jule (alternatively pronounced, depending on the production, "jool" or "julie"), the enormous and imposing gangster from Chicago. Big Jule has come to town, flush, looking for a high-stakes crap game. Near the end of the musical, that game comes to a climax in the local sewer. After some unfortunate early losses, Big Jule has removed his coat and, with his revolver gleaming in plain view in his shoulder holster, pulls from his pocket his special “lucky dice.” These dice appear to everyone else to have blank faces because, Big Jule reveals, they have spots that only he can see. Miraculously, Big Jule’s luck turns, and he wins several big bets. When some of the other gamblers complain, Harry the Horse helpfully explains that “Big Jule cannot win if he plays with honest dice.”
Later that evening, disarmed and on the losing end of an unconventional bet with Sky Masterson, Big Jule finds himself obligated to attend a revival meeting at the Save A Soul Mission. Compelled by his bet to participate in the meeting and confess his sins, Big Jule makes a clean breast of it: “I used to be bad when I was a kid. But ever since then I gone straight, as I can prove by my record — 33 arrests and no convictions.” The prayer meeting is, improbably, a success; lovers are united; and everyone lives happily ever after. Big Jule presumably returns to Chicago to resume his blameless life.
I hope you’re smiling. Now I’m going to ruin everything by explaining why this wonderful story is funny. (A quick editorial aside before we begin: Guys and Dolls is not timeless in every respect, of course. It includes gender stereotyping and other cultural assumptions that, from our 21st-Century vantage, seem not-all-that-quaintly anachronistic. But the features of the story that I have excerpted above seem sufficiently salient to the matter at hand that I think we can make good use of them here.) Once again, the heavy lifting begins after the jump.
When I wrote my most recent post in this series, I thought its subjects—“what [law-graduate] employment and earnings data ought generally to be presented, and whether the way such data are generally understood makes their presentation subject to misinterpretation”—were settled, and peripheral to the broader topic of the series. (Those keeping score at home will recall that the broader topic of the series is the importance and limitations of Mike Simkovic’s and Frank McIntyre’s recent scholarship on the value and purpose of legal education. The first post is here; the second and more recent one is here.) Unfortunately and surprisingly, my previous post has proved much more contentious than I anticipated, spawning dozens of Comments here and at least two posts on other blogs (Mike Simkovic on the Leiter blog here, and Brian Galle on Prawfsblawg here).
As is so often the case, the contention seems to spring from a few basic but important confusions. Actual common ground having proved too scarce to hope for, in the interest of mutual comprehension I attempt here to untangle the skeins that the combatants seem to be throwing past one another. I hope to clarify where and how we disagree, and why I hold the views I do. If you agree with me, that’s nice too. If you disagree, I invite you to explain clearly how and why.
Advance warning: This post is a bit longer than usual (around 2,800 words). The public discourse on these issues is so mixed up that it takes some doing to untangle it. I beg your indulgence, and thank those who make it to the end for their dedication and patience. The heavy lifting begins after the jump.
This is the second in what I intend to be a short series of posts on the importance and limitations of Mike Simkovic’s and Frank McIntyre’s recent contributions to the literature on the purpose and value of a legal education. (The first is here.)
I’ll devote this post to setting aside what I think is a peripheral issue that has occupied some of the resurgent debate spawned by Mike Simkovic’s series of posts on Brian Leiter’s blog. In recent exchanges, this issue has emerged as a series of accusations and assumptions about what employment and earnings data ought generally to be presented, and whether the way such data are generally understood makes their presentation subject to misinterpretation. A lot of the recent controversy has focused on whether, when a law school reports its graduates’ employment numbers, “employed” should or should not include part-time, short-term or non-law-related employment; and whether “unemployed” should include only those actively seeking work, excluding the category the ABA collects as “unemployed—not seeking.” Similar disagreements persist over how to count school-funded positions, and what qualifies as law-related employment, though these are not front-and-center in the recent exchanges I’m writing about here.
Mike’s recent posts have taken the strong and categorical view that law schools, NALP and the ABA ought to report law-graduate employment the same way the U.S. government reports on employment generally, and that any other view is ignorant or misinformed. Board of Labor Statistics and Census data (among others) report people as “employed” if they have any kind of work at all, including work that is part-time, short-term, or (in the case of law-school graduates) entirely unrelated to their legal education; and as "unemployed" only those who are actively looking for work. The widely articulated criticism “that law schools behaved unethically or even committed fraud . . . by presenting their employment statistics in a misleading way,” says Simkovic, “comes down to this: The law schools used the same standard method of reporting data as the U.S. Government.” Any contrary view, he argues, is “based on an incorrect belief that law school only benefits the subset of graduates who practice law . . . ,” a point he not infrequently expresses as an impatience for those who would be influenced by near-term results resembling the ones they might desire for themselves rather than more dispassionately considering lifelong outcomes of the JD population as a whole to assess their prospects.
Not so fast. It matters who counts, and who cares. As for who counts, there is a very significant issue in equating the accuracy and reliability of statistics gathered and disseminated by disinterested government employees with those gathered and disseminated by self-reporting law schools, especially in an environment in which both rankings and prospective law student decisions essential to the welfare of the reporting school are often based on what it reports. I have no doubt that many schools are meticulous and unstintingly honest in their self-reporting. But we already have several documented incidents of motivated or flatly dishonest reporting, and my regretful suspicion is that such discrepancies will prove to be more common than anyone would hope as the ABA starts auditing.
As for who cares, my modest proposal is that people should get the information they want in the terms they are most likely to understand. I would guess that a libertarian economist like my friend Mike Simkovic agrees, in which case his arguments on these issues don’t square with our apparently shared principles in at least two important respects.
First, with respect to the proposition that people should get information in the form they are most likely to understand: It is demeaning and more importantly inaccurate to argue that everyone understands—or any “reasonable” person should—that law schools reported employment statistics the same way the government does. In fact many if not most people relying on US News rankings and law-school statistics (among others, tens of thousands of prospective law students and their families each year) didn’t understand that at all, which is why the ABA stepped in to change the reporting requirements in 2010. I personally was stunned when I first learned that law schools’ “employment” rates reported before 2011 included part-time, short-term and non-law-related work. I am not, as I have previously cautioned all of you, a social scientist, but I daresay I’m no more stupid or ignorant than the next guy. Countless others have expressed the same surprise, and even greater surprise at the discrepancies between “employment” as reported before 2011 and the more granular information reported afterwards. We needed more detailed and explicit reporting for the same reason that just about every state has consumer-protection legislation governing the form and content of disclosures regarding common consumer transactions: You take your audience as you find them.
Second, with respect to giving people the information they want: Simkovic and McIntyre are free to argue (as they do) that any prospective law student’s interest in the nature or duration of near-term post-graduate employment is “based on an incorrect belief that law school only benefits the subset of graduates who practice law . . . .” And they have in fact presented significant empirical evidence suggesting that it is possible for some people to overemphasize these near-term details at the expense of best-informed decisionmaking. As I will discuss in future posts, that doesn’t mean that these conclusions should immediately be uncritically accepted as immutable laws of the universe, and it especially doesn’t mean that they are true for all of the people all of the time. And I assume that, even if they are fully convinced of the truth and immutability of their conclusions (a conviction I suggest is premature), they are not arguing we should withhold information from people so that they can make decisions that the authors consider “better.”
Just as importantly, Simkovic and McIntyre’s studies attempt to quantify the effect of a JD degree on career earnings, and offer suggested courses of action some might choose to take if their goal is to make as much money as they can over a lifetime. No one could claim that this is an irrelevant perspective, but it is hardly the only one we see: While it certainly isn’t true of everyone, many people actually go to law school because they want to be lawyers. Some crave the drama of the courtroom; some have specific social or political purposes in mind; some (and there is at least one study suggesting that this may be particularly true of some who attend lower-ranked law schools with less robust employment prospects and are among the first in their families to seek higher education) enjoy satisfaction from the prestige of being a professional. Even the most doctrinaire neoclassical economist would not presume to argue with a consumer’s utility preferences—which is just econo-speak for there’s no accounting for taste. For the population—and I will suggest that it is a significant one—that specifically wants to be lawyers, statistics about any old job held by JDs are not very helpful. And if you’re still thinking that this doesn’t reflect the real thoughts of real people in the real world, consult the recent exhortation posted by the dean of Cooley Law School—an institution that, with all respect, has an uninspiring recent track record in placing its graduates in lawyer jobs—proclaiming “Now Is the Time to Fulfill Your Dream of Becoming a Lawyer!”
So let’s talk about what information people might want, and let’s talk about how they ought to consider using it. I think Mike Simkovic’s recent posts on the Leiter Blog focus predominantly on just that, and hats off to him for doing so. Let the discussion continue.
But I do want to close by taking issue with one of those posts, which I view as a cautionary tale about the temptations of partisanship. On March 31, a Berkeley Law professor published an op-ed in the New York Times entitled “Law Schools and Industry Show Signs of Life, Despite Forecasts of Doom.” The first paragraph poses the question “is now a good time to go to law school?” and the balance of the op-ed argues hell yes, focusing on (among other things) the employment prospects of recent graduates of Georgetown Law, and on the growth of “quite profitable” large law firms and in-house law departments to argue future need for “lawyers, and plenty of them.” Kyle McEntee (of Law School Transparency) and Steven Harper (of Belly of the Beast) both took strong issue with these arguments on a number of grounds, principally that they were inexcusably sloppy and cherry-picked statistics misleadingly—for example choosing one of the top law schools’ employment outcomes for an example when scores of them have much worse results; suggesting that large firms are hiring aggressively when in fact they are hiring about 30% fewer new lawyers than they did seven years ago; and using part-time, short-term and non-law-related employment outcomes to argue that we could anticipate lots of future demand for lawyers.
One of Mike’s posts not only defended the op-ed uncritically, but did so in terms and in tone that (I hope he’ll forgive me for saying) fall well below the standards I have come to know him for. “Mr. McEntee’s problem,” Mike wrote, “is not that The New York Times got the facts wrong. His problem is that The New York Times got too many of the facts right. Mr. McEntee simply dislikes the facts.” With all respect to Mike Simkovic, that’s really quite unfair. In my own view, McEntee and Harper both nailed it. The op-ed author used cherry-picked statistics including non-lawyer employment and lawyer underemployment to predict (among other things) the future demand for lawyers. That’s misleading. And the entire thrust of the op-ed—“is now a good time to go to law school?” and can those who apply to law school now expect to work as lawyers?—is antithetical to Simkovic’s and McIntyre’s hypotheses, which are that it’s a bad idea to ask whether now is a good time to go to law school (because you can’t know, and any one time is as a matter of prediction as good as any other), and an even worse idea to worry about whether you’re going to be a lawyer when you’re done (because that could distract you from the long-term earnings enhancements that they believe JDs offer most comers). Mike should have lambasted the editorial for citing his work while missing his point.
Next time we’ll talk more about Mike’s points, including both their valuable insights, and those insights’ potential limits.
There has been a flareup in the debate over the purpose and value of law school. The new discussion has been prompted by a series of posts by Michael Simkovic on Brian Leiter’s Law School Reports in which he summarizes and elaborates on his work with Frank McIntyre in two recent articles, “The Economic Value of a Law Degree” and “Timing Law School.” (You can get Mike’s complete set of posts—there are, by my count, 14—on Leiter’s blog by starting here (posted March 19) and scrolling up. Paul Caron has collected links to commentary on the commentary from both sides of the debate here, not all of which are subject to the objection I register below.)
Full disclosure at the outset: Mike Simkovic visited with us here at UNC last term, where he proved himself an excellent teacher and an engaging colleague. I consider him a friend. Of course, I don’t always agree with my friends on everything (maybe that’s why I have so few), and as you’ll see I don’t agree with Mike about everything he’s written. (Editorial Aside: I recognize that there may be no intrinsic reason why anyone should care whether I agree with Mike or not. But since you’re reading this, I’ll indulge the fantasy that you’re a little bit curious, if not about whether then at least about why.) All that said, anyone with any intellectual honesty must appreciate the importance of Mike Simkovic’s recent contributions to the ongoing public discussion on the purpose and value of legal education. His work (and let’s just agree that from here on “he” stands for both Mike and his co-author) is by my lights the first serious, empirically grounded, methodologically thoughtful showing that things—at least some things for at least some people—may not be quite as bad as some of us have feared.
Predictably, extremists on both sides of this longstanding debate have popped up to demonize or deify Prof. Simkovic and his work, vilifying or vaunting his motives and methods in sweeping and categorical terms. I have only one request of all of you—please stop. Stop the toxic name-calling. Stop erecting effigies of your adversaries’ graves so you can dance on them. The subject is much too important to be obscured in petty rivalries. You’re not enlightening anyone, and it’s way too early to claim a victory lap, let alone drag your enemy in circles at the back of your chariot for the next nine days. (I, at least, perceive Mike as having managed to hold himself mostly above the fray thus far, with only an occasional descent into the snippy or snide when goaded a bit too much. But that happens to all of us now and then—not least, I regret to say, your not altogether gentle scribe. I hope we’ll both try harder from here on out.)
In order to keep length manageable, I propose to share several posts over the next couple of weeks with some thoughts on Mike Simkovic’s important contributions. I’ll try to point out some of the questions I think his work addresses, and the questions we still need to explore. Like it or not, this kind of discussion tends to crowd out those prone to announcing that each new datum proves them right about everything all over again.
I’ll conclude this post and set the table for future ones by summarizing Mike’s principal conclusions in broad strokes. “The Economic Value of a Law Degree” uses some accepted techniques of labor econometrics and a federal government dataset to compare the earnings differential over an entire career of people who get a law degree compared with people who end their higher education with a bachelor’s degree. The paper concludes that, whether or not the JDs work as lawyers (and taking into account the costs of law school), a significant majority of them earn appreciably more over their careers than the BAs do. “Timing Law School” builds on these conclusions, and determines that it is not possible to predict a better or worse time to attend law school in order to maximize your lifetime earnings. That is in part because, the study finds, while those who graduate law school into a bad economy suffer some early hits to their earnings and their earnings advantages over BAs, and those who graduate law school into a booming economy enjoy some corresponding early advantages, these differences tend to moderate and then disappear over the longer run of a full career—again, whether or not the JD practices law. (It’s also because it proves to be just as hard to time the labor market as it is to time the stock market; that is, to the extent starting your law career in a better or worse economy affects your overall lifetime earnings, there’s no point in trying to take advantage of it, because you can’t reliably predict at the time you apply to law school what the economy is going to be like when you’re done.)
Again, I take issue with these conclusions in some respects regarding (among other things) their breadth and predictive value for reasons I hope to explain in coming posts. But now you have the big picture.