Now that Peter Alexander is out, Indiana Tech Law is searching for a new dean. The position announcement is here.
For this year's July Fourth post I thought I'd try a trivia question and I thought I'd use something related to the Civil Rights movement. I think this one will be pretty easy. Everyone's seen this bridge before, but this isn't the best view of it. What I'll say is that it occupies an important place in the Civil Rights movement. Here's a different angle.
Cribbing from an email I received:
"The journal individuates itself by laying a special focus on the multifaceted relations between Islam and national and international law orders over the course of time and from different points of view, as well as reflecting legal developments. Furthermore, EJIMEL aims to contribute to the on-going highly topical debates of regional and global interest in the field of Islamic and Middle Eastern Law, such as, e.g., Process of Democratization, Family, Gender and Human Rights. The editors’ aim is to foster a vivid debate focusing on the correlation between Islam as a religion with a distinct body of legal norms and the paramount principles and guarantees of current international law under the aspects of conflict, competition and complement. Also, we welcome contributions which inquire into key phenomena in Middle Eastern law orders such as, e.g., «Re-Islamisation», which have influenced both codifications and scholarly discourse in a significant way."
"We welcome a wide range of unpublished scholarly submissions such as articles, commentaries, reports on contemporary developments, book reviews, judgments, as well as notes on recent legislation, case law, and guidelines on future changes from the targeted law orders in four languages (English, German, French and Italian)."
"In order to be able to keep pace with the developments in the Arab World, we welcome contributions continually and have a policy to post accepted articles on our website as soon as they are accepted and cleared for publication. Hence the length of time from submission through publication can be reduced considerably. Furthermore, contributions may also be solicited by the editors."
The link to the journal is as follows: http://www.ejimel.uzh.ch/index.html.
This is newsworthy, but hardly the big news some people initially suggested. Thomas Cooley Law, a school with five campuses in two states, has announced that it will not matriculate any 1L's this fall to its Ann Arbor shop. Students admitted to Ann Arbor are welcome to attend Cooley at one of its other four campuses. The school has also announced faculty and staff layoffs and other cutbacks. The school does not have a present plan to shutter the Ann Arbor campus.
In 2013, Cooley had a total of 2,334 students enrolled. It had 907 1L's last fall with a median LSAT of 145. The school's total size has dropped significantly over the past few years. In 2010-11, the school enrolled a total of 3,931 JD students.
This announcement will have very real implications for faculty and staff who lose their jobs, and it may change the overall Cooley environment. But for people watching closely to see a law school close, keep moving. I suspect that several other schools have been even more aggressive than this in their efforts to reduce costs.
Belated congratulations to Robert Post on his re-appointment as dean at Yale Law School. I want to talk now about a book by another Robert C. Post. This is a book that looks terrific: "Who Owns America's Past? The Smithsonian and the Problem of History." Cribbing now from John Hopkins University Press' catalog:
In 1994, when the National Air and Space Museum announced plans to display the Enola Gay, the B-29 sent to destroy Hiroshima with an atomic bomb, the ensuing political uproar left the museum's parent Smithsonian Institution entirely unprepared. As the largest such complex in the world, the Smithsonian cares for millions of objects and has displayed everything from George Washington's sword to moon rocks to Dorothy's ruby slippers from The Wizard of Oz. Why did this particular object arouse such controversy? From an insider's perspective, Robert C. Post's Who Owns America's Past? offers insight into the politics of display and the interpretation of history.
Never before has a book about the Smithsonian detailed the recent and dramatic shift from collection-driven shows, with artifacts meant to speak for themselves, to concept-driven exhibitions, in which objects aim to tell a story, displayed like illustrations in a book. Even more recently, the trend is to show artifacts along with props, sound effects, and interactive elements in order to create an immersive environment. Rather than looking at history, visitors are invited to experience it.
Whenever I think about the Smithsonian I also think about Smithson's will.
The image is from Chicago's Midway Airport.
I was in Shanghai last week for the first time, attending a conference and an alumni dinner. The conference – The 2014 International Forum on Financial Law — was at KoGuan Law School at Shanghai Jiao Tong University and was a lot of fun. The conference format was a new one for me and I thought worked very well, especially for an international audience.
The morning consisted of public lectures by party officials, regulators, practitioners, and academics with simultaneous translation. One or two of the Chinese academics were fairly critical of various aspects of the Chinese legal system, and watching the responses from fellow presenters and audience members was especially interesting, though I’m sure that I missed many of the subtleties of these exchanges.
The afternoon was divided into parallel sessions, one in Chinese and one in English, with paper presentations by invited guests. My presentation was in the English session, of course, so I can only speak to the specifics of that one, but I was very pleased with the quality of the presentations and discussion. I learned some new things about emerging corporate law and financial regulation issues in China, Singapore, and Japan, and was struck by both the similarities and the differences of the concerns: for example, several of the papers were on shadow banking in China, which is clearly a concern (as it is in the U.S.), but the character of shadow banking appears quite different in China, making the US experience only partially comparable.
My panel line-up was scheduled as follows, though for scheduling reasons there was a last minute switch of Shen Wei’s presentation on Chinese local government debt and shadow banking (which was excellent) instead of Cheng-Yun Tsang (who did a fine job on the next panel):
Host: Shen Wei, Professor of KoGuan Law School, SJTU
Discussant: Douglas Arner, Professor of The University of Hong Kong
Kim Krawiec, Professor of School of Law, Duke University
Wang Jiangyu, Associate Professor of Law School, National University of Singapore
Manabu Matsunaka, Professor of Nagoya University
Tang Yingmao, Associate Professor of Law School, Peking University
Cheng-Yun Tsang, Doctoral Student of School of Law, Duke University
Naturally, I made time for some food tourism as well (courtesy of UnTour, which I highly recommend). Included are photos of my street food breakfast in Shanghai on the day of departure, which was delicious, and can be roughly divided into three categories: noodles, dim sum, and deep fried dough (yum, yum!)
I'm reading Joseph Spillane's beautifully written and haunting book Coxsackie, which is nominally about a reformatory for young male offenders but is more generally about the trajectory of prison reform from the New Deal to the Age of Reagan. Damn it's compelling, though unsurprisingly depressing. It's just out from Johns Hopkins University Press. If you're interested in the historical roots of our prison system, you ought to spend an evening with this book. Very little talk of Foucault in here, but a lot of compelling writing about our nation's hopes for reform, the grim reality of prison life, and the cratering of the ideal of reform.
"Baghdad Bob", "heinous opportunist", "pitchman", "used car salesman", "predator". This guy's taking a lot of heat for putting up posts suggesting that the job market will improve significantly the next couple of years due to fewer students graduating from law school.
I wonder what the name callers have to say about the following comments from three leading experts on the legal employment market:
“I do expect that the employment rates are going to improve greatly”
"It is worth pausing for a moment to appreciate the likely dynamic between the market for new law students and the market for new lawyers, not least because it offers a ray of hope in what otherwise might seem a dismal landscape. If, as it appears is already occurring, the legal academy significantly contracts, in just a few years there will be substantially fewer law graduates seeking Law Jobs. Even if the number of entry-level Law Jobs remains more or less flat, the Law Jobs Ratio will significantly improve."
"If — and of course it is very much an if — the market for legal jobs remains at its present level (the percentage of GDP dedicated to legal services in America has declined by a third over the past quarter century), then it’s possible that around three quarters of people enrolling law school this fall will get jobs as lawyers, rather than slightly more than the one half of all graduates who have gotten such jobs, liberally defined, over the past few years…[I]t does — or rather it would, let’s not get too far ahead of ourselves — represent a great improvement over the recent status quo."
Update: I discuss this a bit below, but I think it's worth discussing up here. I did not take these comments out of context. Taking a comment out of context means cherry picking or manipulating someone's words to make the reader think the person said something they don't actually believe. For example (h/t internet), if I quoted Judge Smith as saying "I beat my wife", but left out the end of the sentence "at chess", then I would be quoting him out of context. I was not quoting Kyle to suggest that he agrees with everything I say, I quoted him to show that he thinks the employment market for law grads will improve (greatly). What other meaning did he have? When Bernie Burk says that there is a "ray of hope" in the employment data, that's what he's talking about. Paul Campos' statement included some rather large caveats, which I included so readers would be able to understand the context of his statement.
Update #2: Reading the Tamanaha quote a second time, it's unclear if he made this statement to reflect my opinion, his opinion, or both. If Brian wants to clarify, I'd be happy to make any necessary correction. In the meantime, I'll take it down until we clear this up. If you're interested, one of the commenters below has the entire quote.
Update #3: I am on vacation and pretty much away from any computer for about a week. Since I won't be able to monitor or respond to comments, I'm going to close the comment section. I wish everyone a wonderful holiday weekend.
When last the [issue of] Confederate flags in the Lee Chapel at Washington and Lee University flew [on this blog], I provided a sort of hierarchy of places one might find a Confederate flag. The list was designed to show some of the increasingly offensive (if that's the right term for it) placements of a flag. In museums I have essentially no problem with the flag. (Maybe I need to revisit this feeling and I will at some point this summer.) And I of course recognize the right of private citizens to put the flag on their property -- unless it's greater than three square feet and you live in a place like Southern Village, Chapel Hill, NC. I even understand it in cemeteries, especially around Confederate monuments. I get that this is about honoring ancestors. And I also recognize that at this point we commonly allow private citizens to carry flags on public property. I wouldn't want to try to prohibit someone from leafletting on public property and this is a form of that. I'm not a real big fan, though, of Confederate flags displayed by a state actor. I think that's where I draw the line; if this were put up for a vote I'd be 100% against it and I'd actively campaign against this.
I've been trying to figure out why it is that I am much more bothered by the flying of a Confederate flag on public property than I am by the continued presence of a Confederate monument placed on a courthouse lawn decades ago. I suppose the distinction lies in the monument is there and has been there for probably a long while. A flag (at least on a pole outside) is something someone put up real recently. This goes to a distinction between the landscape as it existed before I -- or probably anyone else around here -- was born versus something being added now. The Supreme Court has validated this kind of property-thinking in its monuments jurisprudence.
There's some federal case law on this -- as my distinguished colleague Bill Marshall pointed out to me recently. That is, the 11th Circuit decided in NAACP v. Hunt back in 1990 that the average citizen of Alabama did not have standing to challenge the display of the Confederate flag on the Alabama statehouse. (And the city of Lexington's ordinance that was designed to ban the display of Confederate flags was unsuccessfully challenged in the Fourth Circuit by the Sons of Confederate Veterans back last year.)
For me I think there's another distinction between a monument in a cemetery and a flag. The monument serves as a memorial to people who often had very little control over their destiny -- they were fighting for a cause we now all recognize was wrong (or pretty much everyone recognizes this). But they were dependent variables, mostly. And their family members who lost loved ones and suffered the financial as well as emotional loss are largely the people who put up the monuments.
I guess it's largely because I am a historian and I love the preservation of old things -- and old landscapes -- that I am really opposed to the removal of Confederate monuments. But I think I find more troubling the speech associated with some of the Confederate monuments than even the monuments themselves. Take, for instance, the monument in Sussex County, Virginia, that says "The principles for which they fought live eternally." What a statement for the government to be making on the courthouse lawn. And just what are the principles for which they fought? With such statements on the courthouse grounds year after year I can certainly understand why many residents -- particularly those descended from enslaved people -- would find that a bitter sight. I understand even if I do not agree with the removal sentiment.
Recently I offered a post that tried to clarify some important misunderstandings of my earlier June 20 post. The June 20 post had remarked on how the graduate academy in the liberal arts had fallen prey to the same motivated perception to which some in the legal academy have also succumbed—namely, that the tens of thousands of recent law grads unable to get a genuinely law-related job were just not making proper use of their law degrees (or alternatively really were making proper use of their degrees but didn’t know it). The moral of the story, I suppose, is self-interest’s insidious power to quietly overwhelm any bulwark we try to erect against it, not least reason, good intentions, education, and most if not all of the Ten Commandments.
I explained in my last post that there are essentially three ways to think about the relationship between a course of graduate or professional study and any employment the prospective student may obtain after graduation. One way is to posit that, for you, there is no relationship, and you are pursuing the course of study for its own sake without expectation of any practical benefit when you’re done beyond whatever enlightenment the education may confer. This is perfectly valid, but highly personal and idiosyncratic, and not typical of the ordinary person. The second way of thinking about the relationship between professional study and postgraduate employment is that there must be a relationship between the two such that the education is justified by the worldly benefits that it creates. I suggested (based on analysis in my forthcoming empirical study of the job market for new lawyers) that this Practical Justification Test is met if either the postgraduate position requires the degree as a condition of employment, or the course of study provides dramatic and substantial advantages in obtaining or performing the job not more easily obtainable or substitutable (whether in nature or extent) another way. If the job doesn’t meet this test, then there is a quicker or easier way to achieve the same or equivalent benefits, and the course of study wasn’t worth it.
The third way of thinking about the relationship between graduate or professional study and postgraduate employment is, as I put it yesterday, that the course of study transforms you into such a Smokin’ Bucketful of Awesome that the degree alone routinely opens doors to countless jobs unrelated to the course of study that would otherwise be closed to you, or that you will be so much better at whatever you do that the degree is a Rocket to Success at almost anything. That is a palpably unrealistic description of a law degree (or pretty much any other graduate or professional degree) that nevertheless can be heard among some law deans and admissions officers today.
In response to the post, I received a comment from an admissions officer at a good Midwestern law school that deserves serious consideration and a detailed response. The admissions officer suggests, in addition to the three ways I advanced, “a fourth way to think about the relationship between seeking an advanced degree and the employment a student may obtain afterward”:
I think many students see the versatility of the law degree as a form of risk insurance. Their intent in attending law school may be to practice law and they'd be disappointed not to. But if they don't find “traditional” legal employment, they still might be able to make use of their law degree. It's common to run into law graduates who have ended up outside of traditional legal practice, but in a field for which the JD has some benefit. Is it wrong to point to such outcomes? I think this could be valid in the PhD realm too. I think for most people it would be foolish to pursue a history PhD if their primary goal was to become a high school history teacher. But is it helpful for the candidate to know that if they can't find a tenure track position at a university, that PhD may still be useful for a high school teacher to land a position at a higher paying school district, or become department head ahead of other faculty? So while it may be overselling to say that a PhD is perfect for someone seeking to become a high school teacher, or a JD is perfect for someone looking to do compliance, I think it's fair to point out to prospective students that these degrees might be beneficial in ways that are not obvious. [Paragraph breaks omitted.]
Because this comment cogently describes a view not uncommon in the legal academy today, it deserves careful assessment. Is this “fourth way” a constructive perspective on whether to pursue a law degree? With all respect to everyone involved, as proposed above and typically presented it is an unacceptably incomplete and often misleading portrayal.
Let me explain why. In broadest (dare I say philosophical) perspective, the path you walk from where you stand right now can go any number of different ways. Having gone a ways down whatever path you choose, you will gain a perspective that you didn’t have at the time you chose the path that got you there. Sometimes that perspective will be one you anticipated when you chose the path; sometimes it won’t. This is really just another way of saying that most of us get wiser as we get older simply because we have the benefit of more experience over time.
To be sure, some of us make better use of our experience than others, but pretty much no matter what path you choose, you will reach a vantage point for which you will discover uses that you might not have enjoyed if you had chosen a different path. And this is true even if you make bad choices. Our prisons contain fair numbers of people who, having made very bad choices, will tell you quite genuinely that they have learned a lot as a result (and I don’t mean this in any ironic or cynical sense; sometimes the lessons we are forced to learn the hard way are the ones that teach us the most). This is not, of course, a reason for anyone to start committing felonies; it’s simply an illustration of the fact that it is quintessentially human to learn and grow. Thus, for anyone open to the benefits of experience—and that describes most of us much of the time—even the worst life choices we make usually teach us lessons with real value. Or as some of my older Yiddish-speaking relatives were prone to remark in times of failure or disappointment, “It shouldn’t be a total loss.”
Let’s apply this insight (assuming you can dignify it with that title) to the decision whether to buy a particular car, a decision many of us have faced at one time or another. The used-car salesman is touting the value and utility of the car, assuring you it has everything you need to take you where you want to go. You are understandably worried that the car may not live up to your needs. One thing that the used-car salesman does not say is, “No worries, pal. You should buy this car because, even if the engine implodes the minute you drive off the lot, the smoking pile of scrap that’s left will have measurable salvage value.” We generally don’t buy cars for their salvage value, especially when any car you buy will have salvage value if it can’t serve the purpose you actually bought it for.
I’m hoping an analogy to the decision whether to attend law school is emerging. If you have your wits about you, you consider whether to go to law school taking into account the likelihood that the degree will take you where you want to go—at the very least, a job that justifies that course of study under the Practical Justification Test set out above (and that includes both Bar Passage Required and, properly defined, JD Advantaged jobs as far as I’m concerned). But what if the car (degree) blows up the minute you drive it off the lot (graduate)? And what if the car costs $150,000, and there’s a 50-50 chance (or worse) that’s it’s going to blow up as soon as you hit the open road? What’s the value of what’s left? Should you buy a law degree for its salvage value? (And to anticipate an objection to the car-buying analogy, yes, we sometimes do consider resale rather than salvage value when we buy cars. But when we do, we are assuming that the car under consideration, like the other cars we might buy instead, will serve its intended purpose and take us where we want to go for as long as we want to keep it, thus assuring that it actually has resale value. When a law degree fails to get us a job that really meets the Practical Justification Test, that’s a car-wreck, and salvage value is all that’s available. Put slightly differently, you can’t resell your law degree, though some have tried; if it fails of its essential purpose, all you can do is salvage your career.)
The more subtle student of the dismal science would point out that whether you buy a law degree for its salvage value should ultimately depend on (a) the likelihood the car will actually blow up when you leave the lot; and (b) what that salvage value is relative to the return you could get from investments of your time and money other than buying the car. Fair enough. There are some serious uncertainty and measurement problems in addressing these questions, but we do know something.
Considering first the odds of an immediate car-wreck: Based on the empirical analysis in my forthcoming article, the average student starting law school last fall has perhaps a 60% chance of getting any job upon graduation that meets the Practical Justification Test described above. Of course, that chance varies quite substantially depending on the student: A highly qualified student attending a highly prestigious institution has more than a 90% chance of getting a job that justifies the course of study. A marginally qualified student at an unranked law school in a saturated market might have a 30% chance or less. So a realistic assessment of your prospects—based on hard, objective evidence like the placement statistics at the school you’re considering, your LSAT, and your undergraduate GPA—is essential. Law school is a much better bet for some than it is for others.
What about salvage value? Here is where the wish is all too often father to the thought. Law-school apologists assume very high salvage value for a law degree. They express this assumption by positing both a broad range of non-law-related jobs for which the degree provides access not available without it, and a broad range of invaluable practical and performance-related benefits that the critical reasoning skills we teach in law school provide in almost any job. Unfortunately, there is simply no empirical evidence that either of these assumed benefits exists for the typical person in any measure substantially greater than could be achieved by paths other than law school that require much less time and money. If you’re going to be unemployed (as a double-digit percentage of recent law graduates are), you’re probably better off unemployed without three wasted years and $150,000 in debt. If you get a job you could pretty much as likely have gotten without the law degree (high-school civics teacher; paralegal), you need to think about the difference between what you would learn in three years on that job without any education expense compared to where you are just starting that same job after a very expensive three years.
So does a law degree have any salvage value? Undoubtedly. Is that salvage value materially greater than what you could get (and the costs you could avoid) doing something else for three years instead of law school? There’s no evidence that it is for many if not most people. And to make things worse, it stands to reason that precisely those law graduates who are most likely to find their law degree failing its essential purpose (which is getting them genuinely law-related jobs) are least likely to achieve good salvage values.
But the key point here is that it’s not enough to say that a law degree has some salvage value. You need to compare that salvage value with how well off you might be if you did something else, or nothing. And that’s where the serious problem with our Midwestern admission officer’s justification emerges in high relief. Slip a generic law-school admissions officer into our hypothetical in place of the used-car salesman. One thing you won’t hear the admissions officer say is:
No worries, pal. It’s true that, considering our school and your credentials, you have less than a 50% chance of obtaining a job for which your law degree will be a necessary or a very important and directly applicable qualification. But you will learn things, and from time to time you’ll find some of those things relevant or even useful in some job unrelated to your education. Of course, I can’t promise you that what you might learn doing something other than law school—something for which an employer might pay you instead of you paying us tuition—wouldn’t prove to be roughly as relevant or useful. So are you in?
In other words, touting the salvage value of a law degree as “a form of risk insurance” without offering a clear-eyed assessment of how likely it is that the risk insurance will be needed, what its coverage limits are, and how cheaply you could get the same benefit another way is inexcusably incomplete. It’s a failure to accept the difference between a Smokin’ Bucketful of Awesome and smoking pile of scrap.
A couple of weeks back I wrote about a brief study that ranks schools based on their rank on median LSAT score of the class entering in fall 2013, employment outcome for the class of 2013, and citations to their main law review. I have now done two things with this paper -- first, expanded the analysis to all 194 law schools that U.S. News included in its March 2014 rankings (what it calls the 2015 law school rankings). Previously I dealt only with the 147 schools that U.S. News provided ranks for; now I include the additional 47 that U.S. News called "unranked." Second, in response to suggestions by readers, I have used two different measures of employment. The initial study used the percentage of the class of 2013 employed nine months out at full-time, permanent JD required jobs and this study provides a ranking using that measure. I now provide a separate table that uses a modified employment score (full-time, permanent JD required jobs minus school-funded positions and solo practitioners).
The exclusion of school-funded and solo practitioners causes some schools to fall rather dramatically and a few schools rise a little. One of the tables in the paper reports the schools that have the highest percentage of those positions (Emory tops the list at 21.9%; William and Mary is close behind at 20.7%; the University of Virginia is third at 15.9%). The final table in the paper reports the schools' three variable rank using the "traditional" measure of employment and the three variable rank using the modified employment measure and the differences between those two ranks.
As before, there is a high correlation between the U.S. News' rank of the top 147 schools and the three variable rank presented here. That in some ways validates U.S. News and maybe they validate the rankings here. But importantly, there are significant differences between the U.S. News rank and those presented here, which suggests that prospective students should look very carefully at each school to see how it performs on factors that they care about. Some schools' ranks in U.S. News seem to be supported by strong reputation scores that may or may not reflect current realities and some schools are performing significantly better (or in some cases worse) in areas like graduates' employment rates than their U.S. News ranks would suggest.
Anyway, the expanded version of the paper is now up on ssrn. For those looking for the bottom line (i.e., faculty, administrators, students, prospective students, and alumni curious about how your school fares), tables 4 and 11 are the ones you'll want to turn to. Table 4 provides the ranking of all 194 schools based on the rank of median LSAT for the class entering in fall 2013, percentage of the class of 2013 employed in full-time, permanent JD required jobs, and citations to the schools' main law review from 2006 to 2013. Table 11 ranks all 194 schools based on rank on those 3 variables, but using the modified employment variable that excludes school-funded positions and solo practitioners.
Update: Lawschooli.com has some commentary on this. Also, Laura Stantoski over at most strongly supported discusses the rankings methodlogy extensively. Ms. Stantoski picked up the story from a post I had at law.com about the new rankings.
As in years past, we welcome the opportunity to post law school hiring announcements. Send your announcement to me (firstname.lastname@example.org) or any of the other bloggers here in the Lounge.
Our first of the season comes from our friends at Texas A&M:
TEXAS A&M UNIVERSITY SCHOOL OF LAW seeks to expand its academic program and its strong commitment to scholarship by hiring two exceptional faculty candidates for tenure-track or tenured positions, with rank dependent on qualifications and experience. While the law school welcomes applications in all subject areas, it particularly invites applications in: (1) patent law (including related intellectual property subjects); and (2) legal analysis, research, and writing. Candidates must have a J.D. degree or its equivalent. Preference will be given to those with demonstrated outstanding scholarly achievement and strong classroom teaching skills.
This is an especially attractive time to join Texas A&M University School of Law. Since Texas A&M University acquired the law school from Texas Wesleyan University in August of 2013, applications for admission have increased by over 30 percent and development has grown exponentially, including multiple seven-figure endowed chairs. The law school is poised to build on its tradition of excellence in scholarship, teaching, and public service through the extensive resources and opportunities that result from being part of a world-class public university.
Texas A&M University School of Law is located in vibrant downtown Fort Worth. The Fort Worth/Dallas area, with a total population in excess of six million people, offers a low cost of living and a strong economy.
As an Equal Opportunity Employer, Texas A&M University welcomes applications from a broad spectrum of qualified individuals who will enhance the rich diversity of the law school’s academic community. Applicants should email a résumé and cover letter indicating research and teaching interests to Professor Timothy Mulvaney, Chair of the Faculty Appointments Committee, at email@example.com. Alternatively, résumés can be mailed to Professor Mulvaney at Texas A&M University School of Law, 1515 Commerce Street, Fort Worth, Texas 76102-6509.
By now, most of you have probably heard—perhaps via your Facebook feed itself—that for one week in January of 2012, Facebook altered the algorithms it uses to determine which status updates appeared in the News Feed of 689,003 randomly-selected users (about 1 of every 2500 Facebook users). The results of this study—conducted by Adam Kramer of Facebook, Jamie Guillory of the University of California, San Francisco, and Jeffrey Hancock of Cornell—were just published in the Proceedings of the National Academy of Sciences (PNAS).
Although some have defended the study, most have criticized it as unethical, primarily because the closest that these 689,003 users came to giving voluntary, informed consent to participate was when they—and the rest of us—created a Facebook account and thereby agreed to Facebook’s Data Use Policy, which in its current iteration warns users that Facebook “may use the information we receive about you . . . for internal operations, including troubleshooting, data analysis, testing, research and service improvement.”
Some of the discussion has reflected quite a bit of misunderstanding about the applicability of federal research regulations and IRB review to various kinds of actors, about when informed consent is and isn’t required under those regulations, and about what the study itself entailed. In this post, after going over the details of the study, I explain (more or less in order):
Last week, I posted a short essay here on the reaction of the Modern Language Association and the American Historical Association to recent doctoral recipients’ difficulties in securing the tenure-track academic jobs for which their programs specifically prepare them. I noted that the graduate academy’s reaction was startlingly similar to what inexplicably remains a widespread belief in the similarly constrained legal academy—namely, that the advanced degrees we sell are not being overproduced, but rather “underused,” prompting a distinguished committee of language and literature scholars to recommend that prospective degree candidates be encouraged to devote a median nine years of their lives to a Ph.D. in language or literature in order to teach (among other things) high school.
Among the various reactions I received was a comment on PrawfsBlawg by Northwestern Law Dean and AALS President Dan Rodriguez. Dean Rodriguez dismisses my observations as an “angry” effort to “channel the irritated folks who pepper this post with ‘stick it to the man’ comments in a redundant and wholly predictable way.” (He also calls me “clever,” but I have a feeling he didn’t mean it the way I might have liked.) I don’t think that’s a fair characterization of the post, but I’ll leave that judgment to you. Much more disappointing is his reduction of the post to the contention that “law profs and administrators who counsel students to pursue non-traditional jobs”—even really good jobs that fully capitalize on the law degree—“are engaging in subterfuge and worse,” when that badly misstates the point I was trying to make. Since Dean Rodriguez is a distinguished scholar and teacher (and by all reports a very nice guy besides), I need to consider the possibility this disconnect resulted from my own failure of clarity. Thus it seems incumbent on me to try again:
There are essentially three ways you can think about the relationship between obtaining an advanced degree and any employment you may obtain afterwards. One is to hold that, for you at least, there is no relationship between the two at all—that you wish or wished to obtain the advanced degree for the love of the discipline rather than for any instrumental purpose, and that you feel your life will be or has been so enriched by the course of study alone that no more mundane resulting benefit is necessary to justify your choice. This is undoubtedly the case for some devotees of the liberal arts, but their preferences and needs can fairly be described as idiosyncratic. The typical person thinks about graduate or professional education as substantive preparation for a career. (Someone who chooses to pursue an advanced degree usually anticipates enjoying the subject matter too, but that alone is not enough to justify the course of study for the ordinary person—the degree must lead to something more than enlightenment, as heady and transformative as enlightenment may be.)
So a second way of thinking about the relationship between seeking an advanced degree and the employment you may obtain afterwards is to consider whether, ex ante, an ordinary rational person would have planned to pursue the relevant graduate or professional degree to obtain the job. To be clear, on this view it isn’t essential that you end up in the job you may have planned for at the outset, just that you end up in a job that it would have been rational to seek the degree to obtain if you had planned it that way. I explore this view at length in my forthcoming article on the employment market for new lawyers and conclude that it is one effective way of determining whether a law-school graduate has obtained entry-level employment justifying the course of study. This means as a practical matter that either the postgraduate position must require the degree as a condition of employment (the ABA calls this a “Bar Passage Required” job), or that the course of study provides dramatic and substantial advantages in obtaining or performing the job not more easily obtainable or substitutable (whether in nature or extent) another way (the ABA calls this a “JD Advantaged” job). I will have more to say about this view and the kinds of jobs Dean Rodriguez and I each think it targets in a moment.
A third way of thinking about the relationship between seeking an advanced degree and the employment you may obtain afterward is that the course of study transforms you into such a Smokin’ Bucketful of Awesome that the degree alone routinely opens doors to countless jobs unrelated to the course of study that would otherwise be closed to you, or that you will be so much better at whatever you do that the degree is a Rocket to Success at almost anything. Both Dean Rodriguez and I think this is an obviously bad description of a law degree. Here’s what he says:
One argument in [Burk’s] post is unassailably right and important to make: Even if one supposes that a law graduate has succeeded in finding a position for which the JD degree provides a clear advantage in the work required, it does not follow that law school was the right educational path or, relatedly, that the benefits of this JD degree outweighed the costs. Of course. Point well taken.
In other words, even though you will probably be a better high-school English teacher if you have a Ph.D. in English, and even though you will probably be a better high-school civics teacher (or, say, paralegal or legal secretary) if you have a JD, it would be irrational for the ordinary person to pursue those degrees as a path to those jobs, and obtaining those jobs after graduation provides no adequate practical justification for having pursued those degrees.
But even though Dean Rodriguez and I think this is obvious, a great many people who really ought to know better apparently don’t. Thus, as my original post bemoaned, a committee of the Modern Language Association charged with assessing graduates’ job prospects recently asserted that a 60% employment rate for Ph.D.s in language and literature somehow did not mean that there were too many doctoral students, but only that prospective students should be encouraged to enroll in doctoral programs in order to obtain jobs teaching high school, or to “put[ their] skills to use in the private sector” in unspecified positions “far from literature.” (Just to be clear, teaching high school is a deeply admirable endeavor and a good job. But it is not a job you would get a Ph.D. to obtain. There are much quicker and easier ways to get there.) The American Historical Association recently delivered itself of the similar view that Ph.D.s in history are currently not “overproduced but underused.”
And countless law-school apologists are still flogging the Smokin’ Bucketful of Awesome theory of legal education (known in more polite circles as the purported “versatility” of the JD degree) like door-to-door encyclopedia salesmen. So as to the point on which Dean Rodriguez and I apparently agree, and apparently agree emphatically, I would hope that the future holds more opportunities for Dean Rodriguez to exploit the bully pulpit of the AALS Presidency and encourage deans and admissions officers to cabin their marketing pitches within fair and realistic limits that today are all too regularly transgressed.
Dean Rodriguez also complains that my post eschews any “careful engagement with the point made by many, including [him], that there are positions which ought to count . . . although a credential as a lawyer is not formally required.” Again I seem to have failed to express myself adequately. Of course I think there is such a thing as a JD Advantaged job; I never said I didn’t. My forthcoming 30-year empirical study of the job market for new lawyers, referred to above, devotes considerable effort to discerning how you might know such jobs when you see them. (See the discussion in Part II.) But I also think (and I’m joined here by plenty of sober and thoughtful observers of the profession, including quite possibly Dean Rodriguez himself, though I’ll leave that to him to say) that in current usage the JD Advantaged category is concealing a multitude of sins, and that a lot of law schools are using any connection they can imagine (however tenuous or incidental) between a job’s responsibilities and some broad notion of legal reasoning to categorize a job as JD Advantaged in order to enjoy the benefits in placement statistics and US News rankings this categorization carries with it. As a result, a great many law schools are probably reporting a great many more placements as JD Advantaged than any sensible definition could justify. I have more to say about why this is likely, but this post is already very long, so watch this space for more discussion of this important topic another day.
In the meantime, although he apparently didn’t realize it, Dean Rodriguez and I agree on something else: One good way to understand what people are doing with their law degrees is to have accredited schools disclose in much more detail the nature and responsibilities of the jobs they are reporting as JD Advantaged. Nearly 12% of the Northwestern Class of 2013 currently holds such jobs, so Dean Rodriguez could make a strong start on this transparency initiative himself.
Quite frankly, I’d bet that a lot of the Northwestern graduates with nontraditional jobs recently reported as JD Advantaged are making valuable uses of their law degrees that justify the investment students made to obtain them. What I don’t think is that graduates of Northwestern Law are good examples of the body of recent law graduates as a whole. Northwestern, a top-ranked law school, has the luxury of selecting its students out of the top few percent of the most qualified candidates in the nation. (Its Class of 2013’s median LSAT was 170, the 97.4th percentile.) Those students are as much any employer’s dream when they leave Northwestern as when they got there, and the options available to them are far broader than the much more numerous law grads in the thicker parts of the bell curve. Northwestern doesn’t have to persuade 20th percentile students with dubious bar-passage prospects to borrow $150,000 in order to keep its lights on. Necessity being the mother that it is, I’d also bet that the schools admitting the 140/2.5s are reporting plenty of JD Advantaged jobs among their recent graduates that no rational person would plan to spend three years and six figures to obtain. And those jobs are not the “management strategy, human resources, regulatory compliance, [and] entrepreneurship” positions at “the growing interface among law-business-technology” that Dean Rodriguez’s graduates may very well be occupying. But he’s right—we won’t know for sure without a lot more transparency. A formal call for this kind of disclosure from AALS would go a long way.
A few years back my co-author Alberto Lopez sent me a link to the Negro Motorist Green Book, a travel guide for African Americans during the era of Jim Crow. It was published to let African Americans know where they might stay and eat on road trips. This was necessary, of course, because a lot of establishments provided no accommodations to African Americans. The Green Book divided accommodations into hotels and motor homes. When I was back in Tuscaloosa back in April I stopped by the one remaining motor home in the city that was listed in the 1949 Green Book. I wanted to take a picture of it to illustrate the piece of Jim Crow that invovled limited accommodations. The house is actually quite nice.
I'm going to be talking a little bit more about this as I finish off my brief essay on the Civil Rights Act of 1964 as a tipping point in property rights.
Eric Berger of the University of Nebraska has a new article up on ssrn, "The Rhetoric of Constitutional Absolutism." He's interested in mostly contemporary constitutional opinions that phrase their results in absolutist terms (or what we might think of in terms that suggest that no other result is possible/appropriate). I guess I'm not terribly surprised by this phenomenon. People of action (judges) are likely to think that they're right and to phrase their decisions in terms that justify their decision and make other decisions/paths look implausible or incorrect. What I like about Berger's article is that he goes through a number of the rationales for such appearing certainty. Cribbing now from Berger's abstract:
Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. It ultimately argues that the costs outweigh the benefits and proposes a more nuanced, conciliatory constitutional discourse that could acknowledge competing arguments without compromising legal clarity or the rule of law.
As I say, this is mostly about contemporary constitutional law, but the questions Berger raises certainly resonate with our history. I am naturally drawn to see how this might apply to rhetoric about law, property rights, and constitutionalism in the years leading into Civil War. Judges and lawyers in the South spoke and wrote in increasingly hyperbolic terms about slavery and property and the threats to the constitutional order. Southern lawyers, politicians, judges, and academics increasingly told each other that their rights to property in humans was found in the Constitution, in common and Constititutional law, and in political theory -- such beliefs worked their way into formal constitutional law and fed back into popular constitutional thought. Even at moderate places like the University of North Carolina, there was a growing dissatifaction with the Union, a growing belief that the Constitution permitted states to exit, and a growing belief in the Constitution's support for slavery and opposition to abolitionists. Judges -- including one member of the majority in Dred Scott -- extended their arguments off the pages of the U.S. and state reports to college literary societies and to literary journals. The rhetoric was absolutist indeed.
The UDC monument at Appomattox mentions the fight for "principles believed fundamental to government." I've previously speculated -- perhaps incorrectly -- about the meaning of the past tense. That people in the 1920s were looking back on the era of the Civil War and saying that their ancestors had believed in principles like states rights to protect slavery -- but that we now know better. I use the monument to illustrate that we should probably expect people who believe in a doctrine -- no matter how inhumane and wrong other people know it to be -- to believe fully in that doctrine, right up to the time it collapses. Maybe they should know better, but don't bet on it.
Add slate.com to the list of websites suggesting that 2017 and 2018 will be great years to graduate from law school.
(just kidding about the comments, feel free to post here)
UPDATE: The Wall Street Journal law blog follows up: