The Faculty Lounge

Oral Argument in Horne v. Department of Agriculture

    Oral argument in Horne v. Department of Agriculture was lively, and the government got the worst of it.  The case involves a raisin marketing program by which the federal government orders packers of raisins (”handlers”) to cede title to a significant portion of their crop – anywhere from one-third to one-half – to the federal government.  The remaining portion (the “free tonnage”) may be sold at market prices but the portion requisitioned by the government (the “reserve tonnage”) is sold, exported, or given away by the federal government.  The proceeds from these dispositions of the reserve tonnage, after administrative expenses, are remitted to the producers.  But in recent years the amount the producers get back is either zero or less than their production costs. The Hornes, a family business, refused to give up the portion of their raisins that the government demanded and were assessed a penalty of nearly $700,,000.  After a prior trip to the US Supreme Court on a jurisdictional issue, the case was back today.
    Michael McConnell, for the Hornes, opened the argument by asserting that the case was all about the government’s forced taking of title to the raisins.  He conceded that a volume limit (perhaps of the sort famously at issue in Wickard v. Filburn) would be a use restriction analyzed under Penn Central, but argued that this case was a permanent dispossession, and thus a per se taking. Justice Sotomayor wondered whether this case was akin to Leonard v. Earle, in which the Court upheld a Maryland tax of 10% of the oyster shells taken by harvesters in Maryland waters.  McConnell distinguished Leonard by noting that the oysters were the state’s property prior to harvesting, but raisins (and their precursors, grapes) were never the government’s property until seized.  McConnell added that this was no tax but a seizure or imposition of a penalty equal to the market value of the raisins subject to seizure.  
    Justice Breyer contended that the nature of the program was to prop up prices for the free tonnage so there was a benefit to the producers from the seizure.  Perhaps, although McConnell disputed this, but in any case Justice Breyer’s point goes to just compensation, On that point, McConnell noted that the facts suggest that the drop in market prices from unregulated trade in raisins would be so small that there would be no benefit to producers, and thus no implicit in-kind compensation.  In any case the government’s regulations do not permit consideration of implicit in-kind compensation.
    Justice Kagan argued that this case was no different from a hypothetical government regulation that citizens surrender “records” permanently to the government. McConnell pointed out that, under Nixon v. GSA, historical records can’t be taken from private citizens without compensation. Justice Kennedy noted that even in the case of evidence seized for trial purposes (e.g., “a valuable diamond ring”) the government can’t keep it forever without compensation.
    Edward Kneedler, Deputy SG, faced a skeptical panel. Justice Scalia cut off his argument that the program benefited raisin producers and handlers by sarcasm: “These plaintiffs are ingrates, right?” Justice Scalia then elicited Kneedler’s concession that the government did not think there was any difference between seizures of personal and real property.  Kneedler argued that the government could validly attach conditions to entering the stream of commerce.  Justice Alito asked if the government could condition entry into the cellphone market on giving every fifth phone to the government. The Chief noted that such a program would arguably aid cellphone manufacturers by giving the phones to cell-less users, thus spurring demand.  What’s the difference between cellphones and raisins? Kneedler’s answer was that marketing orders have a long history.  The Chief replied that those programs usually involved volume limits but this was different because “you come up with the truck and you get the shovels and you take their raisins, preferably in the dark of night.”  Justice Sotomayor echoed Justice Alito’s concern about “every fifth cellphone,” to which Kneedler said this was different because it was a comprehensive regulatory program.  Kneedler eventually turned to his argument that this was no taking because the producers voluntarily sold their grapes to the handlers, and they had other options – wineries, table grapes. The Chief shot this down by observing that if a public school mandated pledging allegiance to the flag, it would be valid so long as the kid could go to a different school. Later on, Kneedler defended the program by suggesting that deference should be given to the congressional judgment in 1937 that this was for the benefit of producers.  Justice Scalia responded by noting that “central planning was thought to work very well in 1937, and Russia tried it for a long time.” Towards the end of Kneedler’s argument the Court voiced concern over how many programs might be affected by a decision finding this to be a taking.  “Scores,” said Kneedler.
    On rebuttal, McConnell made the point that benefit to the producers didn’t matter to the question of whether it was a taking.  Loretto’s apartment building was probably more attractive to tenants because of cable access, but it was still a taking. Argument ended on a lighter note when the Chief asked McConnell about the effect of the drought on California raisin growers. “It is not good. ... And I wonder if I will be able to take a shower when I go home.”  
    Based on oral argument – always a dangerous premise – the government will lose. 

More College Towns

Jacqui Lipton's post of Oberlin from the air inspired another round of college town guesswork.  What's this college and where is it located? 

Ann Bartow to Join UNH Law -- Lead IP Center

It's my pleasure to share the news that Professor Ann Bartow has agreed to join UNH Law as Professor and Director of the Franklin Pierce Center for Intellectual Property.  The official announcement is here.  Ann is a player in several different fields and we are happy to add to our strength in IP.  She brings  exciting new possibilities to our school.  The addition of Professor Bartow continues our commitment to deepening and strengthening our faculty and student body. 

Name that College Town Spring 2015 Edition

Now that the spring semester is winding down, and challenging my tech-saviness once again, I'd like to invite blog readers to "name that college town". Okay, I know it's spring but I couldn't resist this beautiful fall photo ...

Heat vs. Light II: It Matters Who Counts and Who Cares

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.

--Bernie

 

Call for Papers

From an email message that I received recently:

The AALS Section on Commercial and Related Consumer Law is pleased to announce a Call for Papers for its program co-sponsored by the Section on Women in Legal Education during the AALS 2016 Annual Meeting.  The papers from the program will be published in the Columbia Journal of Gender and Law.

Female scholars have made pivotal contributions to the development of commercial and consumer laws and scholarship in the United States, especially in the past few decades.  Not only have specific women’s voices played an important role, but distinctively feminist concerns have engendered changes in legal theory and policy.  This panel will discuss the contributions that specific female legal academics have made to the field (as just a few examples, Elizabeth Warren and Jean Braucher).  Also, it will reflect on how feminist concerns have influenced commercial and consumer law scholarship. Finally, it will also include scholarship focused on women’s experiences with consumer and commercial law.

The Committee invites submissions from scholars interested in presenting at the program and in publishing their papers with the Columbia Journal of Gender and Law.  Two speakers will be selected from this call for papers.  The panel is focused on “female perspectives,” broadly construed. The Section strongly encourages proposals from all genders.   

There is no formal requirement as to the form or length of proposals. Preference will be given to proposals that are substantially complete and to papers that offer novel scholarly insights.

Per AALS rules, only full-time faculty members of AALS member law schools are eligible to submit a paper to a Section’s call for papers. Fellows from AALS member law schools are also eligible to submit a paper but must include a CV with their proposal.  All panelists, including speakers selected from this Call for Papers, are responsible for paying their own annual meeting registration fee and travel expenses.

Deadline: AUGUST 15, 2015. We will make decisions shortly after that date.  Please email submissions, in Word or PDF format, to the Program Committee c/o Jim Hawkins at jrhawkins@uh.edu with “AALS Submission” in the subject line. Before sending, please remove all identifying information from the Word or PDF document.

Much Heat, Some Light in Resurgent Law-School Eschatology Debate

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.

Stay tuned. 

--Bernie

Festschrift In Honor Of Bill Turnier

North Carolina Law Review Festschrift In Honor Of Bill Turnier.

A NC Law Review volume in honor of my fabulous former colleague, Bill Turnier.  Congrats Bill! 

The Ten Commandments in Arkansas

The forces of religion were temporarily disappointed when Arkansas Gov. Asa Hutchinson insisted (at the behest of Walmart and other employers) on a gay-tolerant amendment to the state’s Religious Freedom Restoration Act, but they bounced back strongly last week when the legislature overwhelmingly passed the Ten Commandments Monument Display Act.  This time there was no objection from business interests, and Gov. Hutchinson enthusiastically signed the bill.  Thus, under Arkansas law, the Secretary of State is now required to arrange for a Ten Commandments monument to “be designed, constructed, and placed on the State Capitol grounds by private entities at no expense to the State of Arkansas.”

The legislature was apparently confident that church groups would jump at the opportunity to mount the Decalogue, for reasons explained in the statute itself.   “The Ten Commandments,” says the Act, “are an important component of the moral foundation of the laws and legal system of the United States of American and of the State of Arkansas” and represent “a philosophy . . . that God has ordained civil government and has delegated limited authority to civil government.” 

Of course, the Ten Commandments say nothing at all about limited government, delegated or otherwise, but that is far from the only problem with the Arkansas law.  The real difficulty lies in determining precisely which of the commandments are supposed to be displayed.  There are actually many versions of the Ten Commandments, with different iterations venerated by different faiths.

With only slight variation, all Christians and Jews accept the same text of Exodus 20:1-17, where the commandments first appear in the Bible (they are repeated in Deuteronomy 5: 6-21), but in fact there are seventeen separate verses in the scripture.  It therefore requires an act of interpretation – not to mention significant abbreviation – to come up with only ten pithy commandments, especially if they have to be short enough to fit on a reasonably sized monument.  In religious matters, needless to say, interpretation inevitably leads to disputes.

Michael Schill Leaving Chicago To Head University Of Oregon

The University of Oregon has announced that Michael Schill, the Dean of the University of Chicago Law School, will be taking over as the President of UO.  Since the late Dave Frohnmayer - a former law professor - left the Oregon presidency six years ago, the school has had significant turnover in the job - with four different people having been President either in a permanent or interim capacity in that short period.  Schill has been Dean at Chicago since 2010 and served as Dean at UCLA before that.

Professor Patrick Connors will be a visiting Scholar in Residence at Touro Law Center in the Fall 2015. He is a leading New York Civil Practice scholar and teacher. For more information see: http://www.tourolaw.edu/News/NewsDetails.aspx?id=273

Duke Law Students At FT Alphaville

Hooray for Duke Law Students Sriram Giridharan, Martin De Jong, Barret Jackson Nye, Brandon Rice, and Melinda Goralczyk, whose proposal to restructure Ukrainian debt is featured in depth over at FT Alphaville!!

 As someone who has tried for years – unsuccessfully – to grab some attention from Alphaville’s savvy writers, I can say that this is quite a feat.  Alphaville’s readership is highly sophisticated, especially on issues of sovereign debt, which are featured regularly, so this is a real vote of confidence for the students’ knowledge and creativity in coming up with this proposal. 

I have it on good authority that this is a truly exceptional group of students, so congratulations to them on a job well done, just as the semester is wrapping up. 

Penn State Law Review Announces Spring Exclusive Submission Process

This just in:

The Penn State Law Review is conducting an exclusive spring-cycle article review. Any article submitted to this exclusive review between now and April 19th will be evaluated by April 27th. If you have submitted an article to the Penn State Law Review previously, you must resubmit your article for consideration in the exclusive article review.

By submitting your article, you agree to accept an offer for publication, should one be extended. Any articles accepted will be published in Volume 120: Issue 1 or Issue 2 of this review—both of which are slated for publication in summer of 2015.

If you have an article that you would like to submit, please e-mail an attached copy of the article, along with your cv and cover letter, to esg5028@law.psu.edu . Please include “Exclusive Spring 2015 Article Review” in the subject line.

Reposting: Conducting Empirical Legal Scholarship Workshop 2015

The 14^th annual workshop on Conducting Empirical Legal Scholarship, co-taught by Lee Epstein and Andrew D. Martin, will run from June 15-June 17 at Washington University in St. Louis. The workshop is for law school faculty, lawyers, political science faculty, and graduate students interested in learning about empirical research and how to evaluate empirical work. It provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data.

Participants need no background or knowledge of statistics to enroll in the workshop. Registration is here. For more information, please contact Lee Epstein.

More on Appomattox at 150

As a footnote to Al's post on the 150th anniversary of Appomattox, two nice pieces were recently posted about Appomattox and Reconstruction in memory and history: The Unlikely Paths of Grant and Lee by Jamelle Bouie over at Slate and The Civil War Isn't Over by historian David Blight writing in The Atlantic.  Definitely worth a read.

Two Finalists In Seton Hall Law Dean Search

And they are Kathleen Boozang from Seton Hall and Ray Brescia from Albany Law School.

Law School Value: Initial Outcomes, Lifetime Outcomes, and Competition

For those not already following Michael Simkovic's posts at Leiter's Law Reports, I suggest you do so if you are at all interested in the question of how we should measure law school outcomes. I realize that there are a subset of people who will simply never give any credence to labor economics methods. I, for one, have found it helpful to see how we can use data to make decisions, and depending on the decisions we might need to make, the data might differ.

For example, do we want to use data to compare law schools to each other, or against the next best outcome? Here, I think that Simkovic and McIntyre have the upper hand. I have yet to see a rebuttal that uses solid evidence to refute their data or their methods. It's true that they've got some uncertainty after the end date of their data, but employment numbers seem to be going up, not down. Our Full-Time bar pass/JD Advantage jumped 14% this year, and 90% of our grads had some job 10 months out. While the jury is technically out, Simkovic points to other data in his blog posts that imply that the gap between law school and college hasn't changed after the end point of their last data. I've seen many intuitive attacks, but Simkovic parries each one with data. I, for one, favor that approach. And when there is contrary data, I'll be interested in seeing that.

But I also think there is a fairness/consumer protection part of the story that Simkovic doesn't handle as well, in my opinion, and maybe that's why some folks continue to criticize. More specifically, when we are comparing between law schools, there's something to be said about presenting the data in a way that fairly describes employment outcomes. It's fundamentally unfair to allow one school to game the system against all others, and it's even worse to allow all the schools to game the data. And it's unfair to students, because they can't fairly judge between law schools.

Thus, I think there should be room for both worlds, and I think the shrillness of the debate is just missing this. We should be judging law schools on lifetime outcomes, as the evidence is pretty clear that law graduates do better than college graduates of any discipline. But we should also consider accurate (and precise) initial outcomes because a) people tend to more highly value stuff that happens sooner rather than later, b) initial outcomes can affect final career trajectory and thus we should try to maximize options even if not everyone can do what they dreamed of, and c) there is an important market regulation function of short term data.

Criminal justice and the community

There's been tremendous public outrage lately over the process of criminal justice and its failure to prevent needless deaths.  As illustrated by the recent outcries over the shooting deaths of  Walter Scott, Michael Brown, Eric Garner, and Tamir Rice, the public has a growing desire to have their voices heard in matters of local criminal justice. 

Today, society, media, and politicians pay close attention to the latest high-profile crime, but the general public usually finds itself at a great remove, watching the system from the sidelines.  This is highly frustrating to the average citizen, especially when they want to see wrongdoers go through a public adversarial process.

The public’s growing concerns about the secrecy and the lack of public accountability inherent in our current criminal justice system point to a need for more transparency and a better way to include the local community into adjudications of criminal justice.

In my new book, Defending the Jury:  Crime, Community, and the Constitution (Cambridge UP: 2015), I try to provide solutions to some of these problems by focusing on ways to insert the local community back into criminal justice, whether formally or informally.  I argue that the people's right to participate in the criminal justice system through the criminal jury - a right that is all too often overlooked - is essential to truly legitimizing the criminal process and ensuring its democratic nature.

Leon Nefakh , who writes about criminal justice at Slate, just reviewed the book here, giving one of its major ideas--inserting a plea jury into the plea bargain process--careful, if somewhat skeptical, consideration. 

Ultimately, our system of hidden criminal adjudication is one where decisions concerning life and liberty are made far from the public sphere and the public eye.  This book is my attempt to solve some of these seemingly intractable problems.  And at only $29.95 a copy ($16 on Kindle), it's a bargain!

Appomattox at 150

150 years ago today Lee surrendered to Grant at Appomattox Court house.  That means it's time for a picture of Appomattox Courthouse.  I particularly like this picture, of the road to the (reconstructed) tavern where they met, because it suggests both the long road towards that end -- and also the long road from Appomattox.  

For some other images from that park, including the North Carolina monument are here, here (and here, for a plaque put up in the 1920s by the United Daughters of the Confederacy).

Reference Management Software – If you’re not using it, you probably should be.

After spending 4 years doing other sorts of graduate coursework before starting my JD, I was pretty surprised when I learned that many (most?) legal academics don’t use reference management software. However, after an introduction to the Bluebook, I realized why this is probably the case. One of the best features these sorts of programs provide is the ability to automatically generate and dynamically update the citations in a paper-in-progress. Unfortunately, the Bluebook is so (needlessly?) complex that until recently there wasn’t a good implementation of BB style citations by any of the major citation management packages. 

Enter MLZ, a branch of the open source Zotero program aimed at implementing a number of multi-language features (hence the name “MultiLingual Zotero”). But the “killer feature” as far as legal writing goes is the MLZ Bluebook style. While MLZ’s bluebooking isn’t perfect, I’ve seen many hundreds of submitted law review articles and I’d wager that a paper written solely relying on MLZ’s automatic citation generation would be in better bluebooking shape than most of the articles that student reviewers receive. And, for better or worse, the state of one’s citations is probably an important factor in determining how your article is perceived by reviewers.