The Faculty Lounge

Welcome Darrell Jackson to the Lounge

We're proud to welcome Darrell D. Jackson as a guest blogger at the Faculty Lounge.  DJ, as he is known to his many friends, is an Associate Professor at the University of Wyoming College of Law, and teaches Criminal Law and Procedure and Critical Race Theory after a substantial career as a state and federal prosecutor.  He also has a Ph.D. in Education, and as I recently learned at a conference we both attended is a provocative and original thinker about legal pedagogy and curriculum.  

DJ will be Lounging around here for the next month or so.  Watch for his posts!

--Bernie

The Virtues of Legal Academia

I want to sincerely thank the entire Faculty Lounge crew for letting me hang out here for the month, but it's time for me to sign off. I have weddings to attend, courses to prepare, and doctoral work to attend to, and maintaining a posting schedule on two blogs (I have my own blog, The Debate Link, where you can find me year round) is more of a fun decision than a wise decision. That said, it's always worthwhile to step outside my own little corner to interact with new people and make new friends, and I appreciate the opportunity to do so here.

I'll be teaching undergraduates for the first time in the Fall, and I've taken to reflecting on what makes law and law students distinct from those in other academic disciplines. In the media there are plenty of horror stories about Students These Days, none of which I've had any experience with while teaching law school classes. In part, that's because I think more than a bit of the hysterics over Safe Spaces and Trigger Warnings and what have you are nothing more than today's moral panic. And of course law students are older, more mature, and self-select to a particular type that may be less keen on the sort of performative activism associated with certain undergraduates.

But I do think there is something to be said for the particular deliberative virtues that are inculcated in law schools. Whatever can be said about the legal job market or the challenges of being a lawyer (and there is much to be said about these things), purely as an academic discipline I think law very much can be proud of our niche in the scholarly community. Things as basic as the importance of letting all sides say their piece, of taking opposing arguments seriously, of grappling with dissenting opinions, and of keeping an open and impartial mind, are fundamental in our discipline. Developing these skills is part and parcel of what it means to be a member of the legal community. It's not that we're perfect or close to it, but I've yet to met a law professor of any persuasion who does not truly and honestly value these virtues. This is something we can be proud of. And if we are concerned that the rest of academia does not always embrace these values, then I think it is incumbent upon ourselves to export them.

It is perhaps because of the prevalence of these virtues that I've always found the legal academic community to be by and large a great place to "grow up" as a scholar. I don't think it is any accident that it was legal academia that came up with an idea like JOTWELL, for instance. In my experience, the blawgosphere has served both as an incubator of good scholarly ideas and as a community that can help bring scholars of a variety of interests, backgrounds, and career-statuses together. In a world where people usually don't have to listen and so frequently will elect not to listen, the diversity and vibrancy of this community is something we should not take for granted, but can also be very proud to have sustained for so long.

Thanks again.

Advice For Junior Faculty Over At Prawfs

The folks over at PrawfsBlawg have an interesting series of posts going on that will be of interest to many junior (and many senior, though much of the advice is designed for juniors) profs.  For example, Chris Walker has a few FAQs designed for junior faculty, such as How Does My Research Fit Within the Types of Legal Scholarship? (Jr. Law Prawfs FAQ) and Is Publishing a Book Review in a Law Review Still a Worthwhile Pretenure Endeavor? (Jr. Law Prawfs FAQ), with a response from Paul Horwitz. Also of interest is Stuart Ford's post on The Culture of Faculty Works in Progress Presentations.  I'll try to say more about these ideas when I have time, but for now wanted to alert readers that there are some interesting conversations going on over there that they may want to follow.

Law Journals and Social Media Presence

My friend Chris Walker, who teaches at Ohio State--and is a fellow laborer in the probate vineyards--, yesterday posed a question on twitter: "Has anyone posted tips on how law reviews can improve their twitter/SM presence?"  He directed it at several people, including @facloungeblog. I must confess I haven't given that much thought -- or really any thought.  But I'm guessing that some readers will have some ideas.  

I look forward to your thoughts; please keep your comments focused on the question.

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.

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

 

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

Why Tweet? (Plus Some New and Better Data)

In this latest post of what has now become a series on law professor use of blogging and Twitter for marketing, I want to focus on why law professors might tweet. As part of this, I have some additional data about tweeting trends that bear on the question, and I'm indebted to Ryan Whalen for gathering the data for me. Note that some of the data from my prior post is incomplete, because the Twitter API cut off data for high users and did not include automatic retweets. The new data includes all this.

This post is informed with discussions I've had with my friends, both law professor and not, about Twitter, by discussions with marketing folks, by the data we've got, and by sheer speculation.  At the end of the day, I believe how one views law professor tweeting will depend in large part on priors about law professors and how they are supposed to be spending their time.

It should be noted, though, that law professors may well use twitter differently than other types of professors and even other types of twitter users. I mentioned in my initial study post that I would discuss how I would expand the research design. One way would be to compare law professor users to twitter users in other fields (do we see chemists tweeting? maybe not as much) and to a random sample of twitter users (do professors tweet different information than Katy Perry or Jane Doe? probably).

But just because there is no control group doesn't mean that we can't look at how law professors use Twitter, if only to better understand law professor behavior, whatever your priors.

How Law Professors Use Twitter

Given some sharp comments after my last post about law professors using Twitter, I decided to see if there's anything the data has to say about it. The comments I've seen are generally of the type that professors merely use twitter for self-promotion that does not promote any scholarly or legal interest. Related comments from earlier census posts were essentially of the type, "Why do you care about tweets when your law school house is burning down?" Without accepting the burning house analogy, I want to provide the evidence I found and discuss how it bears on these criticisms. In a future post, I'll discuss my view of Twitter, as well as a way to obtain more granulated results than I'm presenting here.

(Note: some of the data here is incomplete. Updated data is presented in a later post).

Law Blogging Best Practices

A commenter on my last post interpreted it as a general post on best practices in law blogging. I didn't think it was, but I thought the points deserved a reairing and expansion in a full post. The questions are: What is the purpose of law blogging? Is there a purpose? Is it all about analysis? When it is not about legal analysis, is there room for the personal point of view, or is that just narcisissm?

On the one hand, these comments might be discarded as simple grousing by a bored reader. On the other hand, I've seen enough comments like this through the years to wonder whether there are different views on the whole endeavor. Indeed, I limit this to "law blogging" because the early rise of such blogging came at a time when blogs, to me, were often little more than expanded "What I had for breakfast" Facebook posts. Law blogs were different. But now that blogging in general has essentially become alternate news service, perhaps expectations have changed so much that the occassional "Why I blogged this morning" posts are intolerable in law blogging.

Let's take the three concerns of the prior commenter:

1. Too much hyperlinking to prior discussion. The primary objection is that this is merely self-indulgent self-promotion to materials that no one cares about. The link to my last post above, in other words, is merely a self-promotional ploy to get the reader to read yet another one of my posts. Another commenter defends the practice, arguing that links can provide context and lead to discussions that might have been missed. My best practices takeaway is that links are helpful, but posts in which every single word seems to be hyperlinked are a bit much.

2. Too much me, me,  me. Posts should be in the third person, and should be neutral analysis. Well, sure, dispassionate analysis can have the most widespread impact. But this is really the heart of the question: is there room for anything else? And does it depend on the website?  Some people like me, me, me postings. I know because I get them shared on my Facebook wall every day. Even Stephen Colbert stepped out of character sometimes, didn't he? The question is, what's the best mix? I have no idea. But I will share one of my favorite comments on this discussion by Bruce Boyden from a prior debate at PrawfsBlawg:

It's an odd, odd view of the scholarly enterprise (but one that I've encountered before) that we are supposed to toil away for months or even years on our pet projects and NOT LET ANYONE KNOW ABOUT IT. It's a tragic fact of life that much of what professors produce is not read (and some subset of that is not worth reading) -- but that's not the ideal!

3. Too long. Bloggers shouldn't expect readers to read a 1000 word post. It's just gasbagging in this tl;dr world. I think length is not the issue, but quality. My own target is usually 800 words, because it forces me to be succinct (and also allows me to make two posts out of one, which keeps the content rolling when I'm busy).  But that said, I think tl;dr is ridiculous. Posters should have good intros and conclusions, but shouldn't accede to the desires of those unwilling to actually read the neutral, dispasionate analysis that they claim they want. I frequently read long, long blog posts that are way better than many shorter posts that simply gloss over the same information.

All of these points are really stylistic, though. It's possible to have a completely irritating, self-indulgent blog with really great content. This leaves me wondering whether best practices are in the eye of the beholder: should bloggers deliver how they want to write, or how people want to read?

On Blogging

I'm pleased to be hanging out in the Faculty Lounge for a bit. I hope to be able to discuss some topics that don't fit in my regular (new) blogging home, Written Description. For my first post, I want to discuss blogging. I'll just discuss some of my own experiences, which may be interesting or useful to others deciding whether to spend time doing it.

I began blogging in late 2008, when Dan Markel invited me to guest for the first time at PrawfsBlawg. I had only been a tenure-track faculty member for a little over a year at the time, so I ignored whatever "don't blog pre-tenure" advice there might be out there. I soon became a regular guest contributor and also joined the group as a permablogger at Madisonian. I thought of blogging as having two primary purposes: 1) writing about things that I don't normally write about, and 2) writing about things that I normally write about. I suppose that covers the waterfront.

Selling The Starred Footnote

I’m late to the game in blogging about this, but I just found out about it on Friday at a conference on the Ethical Limits of Markets hosted by the Institute For The Study of Markets and Ethics at Georgetown University’s McDonough School of Business (about which I’ll have more to say later).  Jason Brennan and Peter Jaworski are selling acknowledgements in the preface of their book Markets without Limits, which will be published by Routledge Press, most likely in late 2015 or early 2016.

The book answers the question “Are there some things which you permissibly may possess, use, and give away, but which are wrong to buy and sell?” in the negative, in contrast to the numerous books already written on the topic which take the contrary position.  Brennan and Jaworski are selling three tiers of acknowledgements: Silvermint Tier, Platinum Tier, and Gold Tier (The Silvermint Tier is so named because philosophy and women’s studies professor Daniel Silvermint is paying to have the highest tier named after him.)

Wish I had thought of that!  But no reason I can’t adopt it going forward.  In addition, I’ve decided to sell links to and mentions of your work in my blog posts and tweets.  I’m still working out the exact fee schedule, but will charge extra for highly positive mentions and even more for highly negative mentions (as controversy is always an attention getter). Finally, if those pesky law review editors won’t stop bothering you for support that you can’t find, just let me know and I’ll sell you a blog post setting out the needed statements, to which you can then cite. 

We often complain that student editors demand support for obviously correct statements of common knowledge – indeed, it is sometimes the case that the proposition is so widely known and accepted that it is difficult to find discussion of the point in print.  For example, you may want to reference the uncontroversial view that “professors of market regulation are considered smarter and more interesting than professors of constitutional law,” yet struggle to find something in print to that effect (in contrast to the faculty lounge and hallway conversations in which this assertion is frequently found). Problem solved!  Just let me know the statements for which you need a citation and I’ll post them here for a fee.  The profit possibilities on this one are nearly endless. 

Thanks For The Invitation

Thanks to Dan and the rest of the Faculty Lounge team for inviting me to be a guest blogger. The Lounge and its counterparts have been important in making feel connected to the American academy since a late life turn to teaching, and it’s exciting to be able to be part of it.

I’m writing this from Shenzhen, China (the 15 million person city right next to Hong Kong that didn’t exist 35 years ago), where I teach Civ Pro, Professional Responsibility and Cross Cultural Negotiations at the Peking University School of Transnational Law (we’re hiring, btw). Prior to that, I had been a big firm equity partner before spending the better part of a decade running a venture funded internet start-up through the ups, downs and recovery of the internet economy. My scholarship lately has tended toward the legal profession and training for the legal profession. I’m particularly interested in how innovation is driving changes in the legal services industry and will inevitably drive changes in education for legal services. My blogging will tend to look at those topics, but with side trips every now and then related to the experience of teaching American law to Chinese students in mainland China.

I look forward to learning from your comments, and hopefully to getting to know some of you a bit better.

The Agents of Law School Reform

I usually stay out of blogging (or commenting) about the law school reform movement.  I'm guessing that I will regret entering this discussion, but I'm very interested in a debate in the comments on Daniel Filler's post on the New ABA Task Force On Financing Legal Education.  Buried somewhere on the second page of comments is a debate about the origins of the movement, its participants, and its effects.  The legal historian in me is *very* interested in this, because it goes to a central question: how does legal change happen?  Does legal reform rise from the grass roots, from little people in obscure places making demands for justice?  Or does reform move from the top down?  And how does a consensus, once reached, trickle out to individual actors (in this case people who might consider applying to law school)?  Specifically, how does the knowledge that law school at the tuition many are now paying is likely a bad bet migrate out to the thousands of individuals who are making decisions about law school?  In short, this discussion engages a lot of the issues that legal historians study.

There are -- in this as in so many areas of life -- debates about this.  The top down approach is represented by one commenter who wrote, "The ABA changed its tune when Barbara Boxer started sending angry letters. Then the NY Times ran its series on the lousy job market for new lawyers. Everything changed after that." That person explained in a little more detail in a subsequent comment that  "Boxer's letters to the ABA prompted the ABA to change the job reporting requirements. The NY Times articles brought the terrible job market to national attention.  Students could now see, thanks to Boxer, how bad placement was at many schools. Applications tanked. Schools have been trying to adjust to that market reality."  I have to confess that I think that fits with a lot of my sense about how the world operates, much as I like to celebrate the role of little people, working from the outside to change ideas.  

The question, I suppose, is how do these ideas bubble up to the level that Senator Boxer would be interested in them?  Kyle McEntee suggests  -- and I believe this to be true -- that there was a lot going on behind the scenes with the ABA and Senator Boxer.  And while he says that it had little to do with blogs he thinks those who were involved were "influenced at times even if not originally by a lively community of concerned students and alumni."

One might reasonably ask, who cares who the agents of reform were.  I think this is both an interesting question and an important one.  Interesting because it tells us about how reform happens -- maybe that's largely a retrospective issue.  From my vantage it looks like word spread about the poor career outcomes, which proceeded in lots of different ways.   As applicants came to believe that law school was far from the road to the middle class and upper-middle class that it had once been, they went in other directions.  There is a second -- and important -- reason to figure out who the agents of change were, though.  As we determine who the agents of change were and how the ideas of change were disseminated we'll have a better sense of the directions of the future changes.  I think there are important issues of pedagogy, the role law schools in the profession, the role of law schools and the bar as gatekeepers to the profession that need to be discussed.  Those are related to the cost and job outcomes, obviously -- but they may be sufficiently distinct that they will not receive the attention they deserve as the number of law school graduates declines and as tuition comes down.

The image is a road at Monticello, which I used to suggest the question: what path leads to change?  Though I also thought about two other images -- one of some imposing courthouse or state house, which might suggest hierarchy and how change happens (if at all) from the top down; and then something from the occupy or civil rights movement, which suggests change from the ground up.  Much as I like to study and believe in the latter, I fear that the former is a lot more common.

Blog Traffic Rankings

Paul Caron has blog traffic numbers up here.

Taxing Eggs on Oral Argument

Folks who followed the Taxing Eggs symposium here at the Lounge a few weeks ago might also be interested in the most recent episode of Oral Argument, The Astronaut's Hair, featuring Lisa Milot, one of our tax expert participants in the Taxing Eggs symposium.  The episode is really well done, and touches on the taxation (and other legal and cultural issues) involving the sale of gametes, plasma, hair, artwork, and other items. 

I was unaware of Oral Argument until this episode and am now going back to listen to the prior episodes, which cover everything from substantive legal debates to law school rankings to the roles of legal scholarship and law blogging.  According to the website, Oral Argument is “a podcast about law, law school, legal theory, and other nerdy things that interest us” and is “a product of the collision of Joe Miller and Christian Turner.”  Prior episodes are:

Episode 14: The Astronaut's Hair (guest Lisa Milot)

Episode 13: A Special Place in Hell for Joe (guest Dave Hoffman)

Episode 12: Heart of Darkness

Episode 11: Big Red Diesel

Episode 10: My Beard Is Not a Common Carrier (guest Christina Mulligan)

Episode 9: Torches and Pitchforks (guest Mehrsa Baradaran)

Episode 8: Party All Over the World

Episode 7: Speed Trap

Episode 6: Productive Thoughtlessness

Episode 5: It Takes All Kinds (guest Logan Sawyer)

Episode 4: Grow a Pear (guest Sarah Schindler)

Episode 3: Cut It Off (guest Paul Heald)

Episode 2: Bust a Deal, Face the Wheel (guest Tim Meyer)

Episode 1: Send Joe to Prison (guest Sonja West)

Episode 0: Who Is Your Hero?

Hobby Lobby At The Glom

Our friends over at The Conglomerate are hosting an online symposium for the next four days on Sebelius v. Hobby Lobby Stores, Inc., (the United States Supreme Court will hear oral arguments tomorrow).  Though nearly all of the 84 amicus briefs submitted in the case explore the religious freedom issues, rather than the corporate law issues, Jayne Barnard, who will be in the courtroom tomorrow, asks: Will corporate law be the tail that wags this dog?  Posts by Steve Bainbridge and Nate Oman are already up, and I’m sure that more will follow. 

A WaPo Conspiracy

Congrats to the Volokh Conspirators, whose blog, beginning today, will now be hosted at the Washington Post. Conspirator Kenneth Anderson strikes me as an especially natural fit. #rimshot #hereallweek

Welcome ericposner.com

Via Dan Markel, I see that Eric Posner has gone all independent on us by starting up a solo blog.  And he already has a few great posts up, such as this “empirical study” of the social value of legal scholarship, in which Posner finds no evidence that Ronald Dworkin’s Law’s Empire had a favorable impact on stock market returns, as measured by the S&P 500 Index.  My favorite, however, is this post on the pomposity/quality relationship in legal scholarship:

 

 

Welcome to the blawgosphere ericposner.com!

New Blog, "ACA Death Spiral," by Houston Law's Seth Chandler

In case the title of the blog doesn't make its thrust clear, here's a snippet from Seth's opening post:

This blog is going to chronicle what I believe will be the implosion of the Affordable Care Act.  I do not believe the Exchange based system of providing health insurance without medical underwriting is likely to work or that, if it does, it will not need far more massive propping up from federal taxes than is conventionally recognized. We’ll be looking at current events, the history of the Act, important court cases, and regulatory developments. Our tools will be a careful review of primary documents, some graphical and mathematical analyses, and references to important and insightful articles written by others.

Also, there is more to the Affordable Care Act than the Exchanges.  There is more than the individual mandate. There is the employer mandate, the complex systems of federal reinsurance needed to backstop the Act, the reintroduction of medical underwriting under the “wellness label” and so much more.  We’ll try as time permits to take a look at developments in these important areas too.

Seth — who is an insurance law expert — notes the "need for some hard and at least somewhat scientific look at what is going on." So far, since beginning the blog some 48 hours ago, he has tackled the Upton Bill intended to address the "if you like your health care plan you can keep it" issue (which passed the House this afternoon with the help of 39 Democrats and now heads to the Senate); yesterday's announced "Obamafix," intended to address the same issue; whether the ACA's little-known reinsurance and risk adjustment provisions could make exchanges more resilient to the underenrollment that many, including Seth, anticipate; and five questions journalists should be asking about the ACA (hint: fewer questions about how the rollout is likely to affect the careers of pols; more questions about the winners and losers under the ACA among the rest of us).

Welcome to the blawgosphere, Seth.

[Cross-posted at Bill of Health]