The Faculty Lounge

Justice Kennedy on Law Reviews and Law Blogs

According to Penn Law's Twitter feed, Justice Kennedy—in a Q&A session he gave at the school, apparently as part of its inaugural Visiting Jurist program—opined that law reviews are helpful in "examining the rule of law, but in a smaller timespan professor blogs" are invaluable.

(Photo credit here)

New Law School Blog

From our colleagues "down under" (and especially Prof Colin Picker at UNSW) ....

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"Members of the law school’s Legal Education Cluster have today launched a new blog on legal education - “lawschoolvibe”. We believe it to be the first of its type in Australia.

 The blog will include short discussions of current issues and news items of relevance to legal education in Australia and elsewhere.  Legal education in the blog is broadly defined to include issues relevant to teaching, researching and administration/service.

 Already there are posts – so, please check it out at http://lawschoolvibe.wordpress.com/ . 

 More info on the goals and purposes of the blog (as well as a link to a YouTube clip that shows where part of the name comes from) can be found at http://lawschoolvibe.wordpress.com/about/"

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Welcome to the law school blogosphere! We're looking forward to the conversations! (And for anyone who hasn't seen "The Castle" and doesn't know how the name of the blog was derived, I highly recommend the YouTube clip.)

Anonymity as Cultural Practice and in Case Law

My Chapel Hill colleague Victoria Ekstrand has a new article, "The Many Masks of Anon: Anonymity as Cultural Practice and Reflections in Case Law" out in the Journal of Technology Law & Policy.  Cribbing now from the abstract:

Relying on an interdisciplinary analysis of the literature in communication, history, literature studies, and political science, this article argues that anonymity in discourse is a string of complementary and sometimes conflicting cultural practices that case law has only begun to unpack, particularly in online contexts. While anonymous speech appears as one construct in law, it actually represents a whole host of practices informed by different motivations and different experiences in discourse. Part One operationalizes how communication scholars and others define anonymous speech and its consequences and serves as a basis for thinking about the role of anonymous speech in law. Parts Two and Three use the interdisciplinary literature to address the origins and longstanding traditions of anonymous speech to identify the “beneficial” and “harmful” motivations for engaging in such practice. Part Four examines three U.S. Supreme Court decisions to address whether and how case decisions reflect those cultural practices identified in the literature. Part Five concludes with thoughts on the disconnect between cultural and legal practice. The law still largely sees anonymous speech as a singular construct, but may benefit from seeing anonymity as a set of practices. The author concludes that the cultural practice of anonymity is itself a wearer of many masks and traditions; courts would do well to recognize the many faces of and motivations for anon.

Download the article from ssrn here.  I think that a lot of faculty lounge readers will be interested in this -- probably very interested.

On Being Misinterpreted (Or, Elie Mystal Thinks I’m An Idiot On Account Of Things I Didn’t Say; Now What?)

It’s always fascinating to see what others make of your ideas.  Sometimes your readers find them a window into a world they hadn’t fully explored, which is ineffably gratifying.  Sometimes your readers make them into strange lenses that refract things into exactly what they thought they already knew, which is rather less gratifying.  Three journalists (well, two journalists and a full-time blogger) took a look at my new article, “What’s New About the New Normal: The Evolving Market for New Lawyers in the 21^st Century,” described in my last post.  Karen Sloan of the National Law Journal provided a fair and balanced summary of the paper’s content, but concentrated on the aspects of the analysis predicting that the number of entry-level Law Jobs will remain depressed for the foreseeable future.  Jacob Gershman of the Wall Street Journal provided an equally fair and balanced summary, but focused on the paper’s additional and somewhat counterintuitive conclusion that, because poor job prospects are driving down the number of new law students, there will eventually be fewer law graduates seeking more or less the same number of jobs, which should make life somewhat easier for the fewer graduates on the job market some years from now.  Elie Mystal of Above the Law treated us to one of his breathless, spittle-on-the-corners-of-his-mouth rants, and pronounced me a Don’t-Worry-Be-Happy academic apologist vying with purportedly like minds for the “neatest bit of sophistry in defense of going to law school.”

Poor Elie.  It can’t be three weeks since he indulged in a similar surge of fury at Michael Simkovic and Frank McIntyre of Seton Hall concerning their study on “The Economic Value of a Law Degree,” and savaged the work for errors that even a casual reader would have appreciated simply weren’t there.  (To be clear, I think there is plenty to argue with in the Simkovic-McIntyre analysis; unfortunately, almost none of it could be found in Elie’s landmark post “Another Garbage Study Offering Misleading Statistics On The Value Of A Law Degree.”  This had the perverse effect of deflecting attention from a range of more subtle concerns with the paper, which I doubt was the intended effect of the attempted beat-down.)   Since I am a teacher, I can’t help but notice that there appears to be lesson emerging here:  Read before you rage. 

So let’s see if we can straighten this out for anyone else in danger of confusion.  Anyone who knows anything about my work (and to be clear, Elie Mystal is not to blame if he doesn’t) knows that I have argued explicitly and repeatedly that there currently are far too many seats in far too many law schools given the number of law-related jobs available; that this mismatch has visited tragic and incalculable misery on tens of thousands of aspiring lawyers, and that anyone who tries to assert otherwise is either grievously mistaken or contemptibly dishonest.  Look here and here, for example.

Far from being “sophistry in defense of going to law school,” then, the “New Normal” paper (here) provides detailed empirical support for the propositions just described  (with which, ironically enough, Elie apparently agrees).  The paper shows that the entry-level Law Jobs market is currently poor and has been for the last five years (pages 24-25, 28); that reductions in BigLaw hiring are responsible for a disproportionate amount of that change for the worse (pages 30-35); and that there are strong objective reasons to believe that entry-level BigLaw hiring, and thus the entry-level Law Jobs market in general, will remain depressed below pre-recessionary levels for the foreseeable future (pages 35-54). 

So far, it would appear that Elie and I are in complete agreement.  The paper goes on to reason that if the legal academy shrinks, and the number of law graduates falls while the number of Law Jobs stays more or less the same, then future smaller classes of law grads will have an easier time finding jobs.  Elie doesn’t fight the logic (you can’t); instead, he pronounces the prediction of a shrinking academy “almost certainly wrong” because he believes there is no way that the number of law graduates will fall.  What is the empirical basis for this prognostication?  He says the executive director of the National Association for Law Placement, James Leipold, told him so.  Now, I have no idea what Jim Leipold told Elie Mystal, but I do know the facts.  Here are a few of them:  The largest first-year class in history entered law schools across the country in the fall of 2010; it was about 52,500 people.  The first-year class that started in the fall of 2012 is estimated at about 42,500, a drop of about 20% in two years.  [Update:  LSAC reports an entering class of about 44,500 in 2012, only a 15% drop in two years.  Others estimate the 2012 first-year class at less.  Hat-tip to Paul Campos for pointing this out.]  Last year, over half the accredited law schools in the United States shrank their entering classes by 10% or more.  We don’t have entering class numbers for this fall yet, but there are reports –particularly among the schools that have had the worst placement records in recent years—of 30%, 40% and even 50% reductions in entering class sizes.  The number of applicants to law school has shrunk by a third just between 2010 and 2013, and the number of applicants for the first-year class that will be starting soon is at levels not seen since Ronald Reagan was president.  And remember that, historically, about 10% of each aggregate entering class drops out before graduation.  So the number of new graduates we can expect to see three to five years from now will necessarily be much smaller than it was just three years ago, and it’s still looking for its bottom.  In other words, what Elie thinks is impossible is actually happening already.  By the way, all of this information is prominently presented in my paper.  See pages 54-56. 

So yes, for the much smaller number of law school graduates we’ll be seeing three to five to seven years down the line, I do think it will be easier to get a law-related job, so long as the number of such jobs at worst stays at about the same seriously depressed levels we see today (which I think is a good bet, and probably a little conservative).  But that is true only because there are currently way too many seats in way too many law schools, and only because a lot of people who might have considered applying to law school are already choosing not to do so, and even more in the future will continue to stay away. 

What that means as a practical matter should be obvious:  You need to figure out if you’re one of the many potential law-school applicants who ought to stay away for your own good.  Nothing in my paper (or anything else I've ever written) should be read as suggesting that no matter who you are, things are going to be great for you if you start law school in the next few years. Things will improve only if more people avoid law school unless they are good bets to succeed.  So unless you have a coherent and plausible plan for the use you’re going to make of your law degree that is rationally justified by your LSAT and undergraduate grades, don’t go to law school.  If the only law schools you get into are ones with an acceptance rate north of 50%, don’t go.

If that makes me an idiot, I can live with it.  When all is said and done, though, I do have one thing to thank Elie for.  As Oscar Wilde memorably remarked, the only thing worse than being talked about is not being talked about.  I thank Above the Law for subjecting me to the lesser of the two evils. 

Bernie

Are Law Blogs (Still) Relevant?

I've mentioned before that one of my friends asked me last winter whether law blogs are still relevant?  It came as sort of a surprise.  After years of skepticism about blogs (bloggers' disease and all that), I finally turned a corner and embraced them.  Then a friend (and blogger) just sort of off-the-cuff dismissed them.  In fact, he asked the question in such a dismissive way that I took it as more of a statement than a question, really.  It was I guess a socratic question designed to get me to admit, "oh, of course blogs are irrelevant."

Nevertheless, there are a lot of people who continue to talk about the relevance of blogs -- Jay Brown's recent work on law faculty blogs and disruptive innovation is one example.  And now I see Anna Ivey's introduction to the third volume of the "Journal of Law" is focused on scholarship from law blogs.  The Journal of Law collects scholarship published elsewhere and they have a section on blogs.  By the way, congratulations to Michelle Meyer, who has a post from the faculty lounge reprinted in this year's volume.  I think the Journal of Law's focus on scholarship that appears on blogs is helpful in identifying the kinds of work that is appropriate for blogs -- work that is suggestive rather than definitive, quick takes, or in an area that's moving quickly.  

But I still have the nagging question: are law blogs relevant?

Welcome to the Blogosphere, Education Law Prof

While I'm thinking about Harvard's Graduate School of Education and their new dean, James Ryan, I also want to welcome Education Law Professor blog to the blogosphere.  The blog is administered by my friend Derek Black, who is a professor at the University of South Carolina, along with LaJuana Davis of Cumberland School of Law, Samford University and Areto Imoukhuede of Nova Southeastern School of Law.

Jefferson's Fragments

    It is a virtual commonplace of legal theory and the history of legal and political thought today that Jefferson is not to be counted among its great subjects. With the notable exception of Sanford Levinson, constitutional theorists and historians of legal thought today generally pass by Jefferson’s comment to Madison that “the earth belongs in usufruct to the living” as at best an overly idealistic road wisely not taken. David Strauss and Jed Rubenfeld treat Jefferson as a fundamentally unrealistic and anti-historical thinker (by Rubenfeld’s lights, akin to Nietzsche, which is telling), while Stephen Holmes dismisses Jefferson as simply an “anti-constitutionalist.” David Konig, the leading historian of Jefferson’s legal career and the editor (along with Michael Zuckert) of his legal commonplace book, argues that Jefferson’s stance is that of a speculative philosopher which had to be subsequently reigned in by his more judicious friend and collaborator. Hannah Arendt noted Jefferson’s ward republic idea as a precious gem forgotten by both American politics and the revolutionary tradition, and Jennifer Nedelsky and Richard Matthews (among others) have noted Jefferson’s radical theory of property rights in his extended dialogue with Madison, but those are the apparent limits of Jefferson’s identity as a legal thinker. Paul Finkelman writes about he impact of Jefferson on American constitutional law, but that impact is felt through his subsequent political career.

    What many of Jefferson’s critics on this front have in common is a feeling that Jefferson’s idea was simply ahistorical- an example of what Michael Oakeshott calls political rationalism at its worst. Robert Tsai has an appraisal of Jefferson’s idea and the project of legal revolution, but he suggests Jefferson is ultimately inadequate here because it requires us to imagine ourselves stepping out of our context and the assemblage of law and history that brought us to it. Similarly, Kunal Parker views Jefferson and Paine as exhibiting a revolutionary theory of the timelessness of consent. I just don’t see it that way at all. What is Jefferson doing hunting down manuscript copies of the colonial laws of Virginia and the records of the Virginia Company if he thinks he is conveniently stepping out of the thickness (or the need for) historical representation? What about his concern for the writing and rewriting of legal text so apparent in his plans for councils to go over proposed amendments to the state constitution, or his wish, again, expressed to Madison, for a plebiscite to make suggestions before approving the US Constitution? And what flippant anti-historical idealist composes the Manual for Parliamentary Practice?

     I see Jefferson as first and foremost a practically engaged theorist of the politics of historical representation, and he distilled that theorizing into an understanding of the ideal citizen as essentially a user of inherited materials- land, yes, property, yes, but also of law and of language. In that sense, Jeb Rubenfeld’s linking of Jefferson and Nietzsche is apt, but precisely because Jefferson, at his best, thought basically historically, or genealogically and counter-genealogically, or even archaeologically, about law and politics.

     Somewhat (and I emphasize the somewhat) in the spirit of Corey Robin’s recent separate posts on Jefferson as a racial thinker and Nietzsche as the closeted inspiration for neoliberal economic theory, we could, anachronistically, say that Jefferson’s thinking about the use and disadvantages of history for life and his vision of a transformative human subject was capable of both radically democratic and reactionary, violent implications. Unlike Nietzsche the philologist and philosopher, Jefferson the man of action, slaveowner, and proponent of continental empire had a direct hand in realizing some of those implications himself. In the final analysis (if there is such a thing), Jefferson’s career is incomprehensible without understanding it as a project of constituting and protecting the racial, gendered, and geographic boundaries of a potent ideological vision of the true and ideal citizen.

    But problematizing and forgetting are two very different things. In our current moment, it might just be that the memory of Jefferson’s conjoined concepts of law as use and of the citizen as a particular kind of reader can appear in a new light. The historical practice appropriate here is one not just of recovery but of active recollection. If Jefferson if of any use, it is to teach us that that is where our political thinking can begin again. 

    I want to thank Al Brophy and Dan Filler for letting me chime in here at the Lounge for the past month or so- I have been and always shall be a regular reader of this great blog. 

Social Enterprise Blog

If you have an interest in issues and events related to social entrepreneurship and social enterprise law, you may wish to bookmark the SocEntLaw blog.  Its contributors include several law professors / lecturers, including Cass Brewer (Georgia State), Deborah Burand (Michigan), Suzanne McKechnie Klahr (Harvard / Stanford),  Haskell Murray (Regent), Alicia Plerhoples (Georgetown), Dana Brakman Reiser (Brooklyn), and Kyle Westaway (Harvard).

Blogging, Writing, and Teaching About Federal Indian Law

Thank you, Al, for inviting and introducing me. I've been reading The Faculty Lounge since you all started it. We started our blog, Turtle Talk in 2007, just before The Faculty Lounge. Though I don't post nearly as much as my colleague, Matthew Fletcher, it's taken some time to be able to tear myself away and write over here. Turtle Talk is comprised mostly of primary source material surrounding cases in federal Indian law (briefs, decisions, news articles, law review articles), though we periodically post commentary. This has the added benefit of keeping us fully engaged in developments in our field, which can at times feel overwhelming.

Al said he wanted to hear a bit about history in federal Indian law, but as a non-Ph.D holding person, this always makes me nervous! I majored in history in undergrad, but did not complete (nor attempt) any graduate work in the field. However, in law school I wrote a small history paper on the Cherokee Freedmen and treaty concerns, and then found myself digging into the issue of laches and Haudenosaunee land claims once I was employed by Michigan State. Tracing the dramatic shift in the equitable defense of laches from its development in England to a series of cases in the Second Circuit, starting with Cayuga Indian Nation v. Pataki, made me antsy to write about legal history and the Supreme Court, at least as it affected American Indian tribes.

My most recent article identifies fundamental problems with originalism interpretation and how the assumptions underlying that interpretation harm tribal interests today. I've had a mixed response, including the argument that the Constitution provides strong language for tribes under an originalist interpretation. I'm not sure that's entirely true, regardless, given the dismal results for tribal interests at the Supreme Court, the argument certainly isn't working, which is what I was (and am) interested in.

To begin my time here, however, I think I'll start with the other area of my focus, the Indian Child Welfare Act (ICWA). The Act, passed by Congress in 1978 and interpreted by the Supreme Court once in Mississippi Band of Choctaw Indians v. Holyfield, is in front of the Supreme Court again this term. This semester I'm also teaching a class on ICWA. I hope to write here about ICWA, how I changed my ICWA class at the last minute to incorporate the case (and what I'd change in the future), how amicus briefs inform my writing and teaching, how my service on the Court Improvement Program in my state provides me with ideas for teaching, and back to how my role at the law school often leads me to base my writing projects on external needs or requests for our Center. I still have writing projects in mind surrounding equity and tribes, the public interest doctrine and tribes, and one with a friend tracing the history of the modern Haudenosaunee land claims cases, which I hope to get back to as our semester winds up.

Till then, thank you again for having me.

 

Trolls

Nice little bit from artist Vi Hart over at Brain Pickings. Taming the Trolls.  A little uncomfortable psychoanalysis in the piece if negative comments get you down (which they do me from time to time). Brain Pickings is a great site and offers lots of wonderful tidbits of interest to academics and non-academics alike -- most of which have nothing to do with trolls and such.

In memoriam Ronald Dworkin

Am reposting Steve Shiffrin's thoughful post on Dworkin. My Love/Hate Relationship with Ronald Dworkin from over at ReligiousLeftLaw

Publicly Developing A Model Litigation Finance Contract

Professor Maya Steinitz, at the University of Iowa College of Law, has an interesting research/crowdsourcing/transparency project going on at her new site, A Model Litigation Financing Contract: Litigation Funding in Theory and Practice.   For those interested in this practice, it's worth a look.

She explains:

Litigation finance is third-party funding of litigation for a profit -- a booming and controversial new industry. In this project, I am suggesting draft model provisions, and ultimately a full contract, and inviting the public - academics and practitioners - to opine. Currently, all such contracts contain confidentiality provisions and international arbitration clauses which means the practice is completely secretive. Provisions and contracts that have become publically available -- usually when claimants sue funders -- have revealed less than optimal arrangements (putting it mildly). The success of the project will revolve on participation by readers. I believe this is a novel way of doing academic work: posting draft model legal instruments and inviting and moderating a public debate on them.

 

Ranking the Amendments

Earlier today, sports blog Deadspin posted a list ranking the amendments to the Constitution. According to editor-in-chief Tommy Craggs’ algorithm – which is not explained in the blog post – the Fourteenth ranks first, followed by the Fifth and Fourth, respectively. The Second ranked dead last.

I’m sure we all have our favorite amendments (“favorite,” in terms of our scholarship and “favorite,” in terms of our personal constitutional politics); where would you rank the Second? Or any of the others? Given the choice, I’d probably rank the Fourteenth and the Second close together; both are ambiguous enough to remain subject to highly-contentious judicial construction. I’d probably rank the Third somewhere near the top, since the prospect of quartering a slew of soldiers in our NYC apartment seems particularly unsavory to me.

Are there others?

 

More On What Matters Most (Or, Paging Dr. Pangloss)

Change is hard.  Big changes are underway in the economics of the legal profession, and they are driving equally big changes in legal education.  These changes have imposed genuinely tragic hardships, most immediately and directly on the aspiring lawyers trapped in their cross-currents.  Those who entered law school in 2005 and later implicitly or explicitly made rational (or as time went on, at least not entirely irrational) assumptions that the legal economy would continue, mutatis mutandis, as it had for the last forty years or more, an endlessly rising tide lifting even the leakier and more crudely-finished boats.  Sadly, and through little fault of their own, they were wrong, and at great personal cost—in time, in money and in life plans gone awry.

Change is scary.  The fear is palpable among those speaking to current circumstances out of the academy, and has produced the two results that such fear predictably spawns:  Rank denial and frank hysteria.  Neither is merited.  Today, prompted by yesterday’s much-downloaded op-ed in the New York Times, I speak to the Panglossians; my next post in this space will address the Pandemoniasts.

My message to Dr. Pangloss is simple:  Stop and think.  Please.  You can’t whistle “Don’t Worry, Be Happy” loud enough to drown out the anxiety that is prompting this forced insouciance.  And you are wasting valuable time and energy not only denying the existence of important questions you ought to be addressing, but potentially confusing others who will make errors they could have avoided and lose opportunities they could have claimed. 

Those of you who remember my post on “What Matters Most (in legal ed these days)” (and blessings be upon you if you do) will recall that I suggested that by far the most salient feature of the legal education landscape today is that there are too many law graduates and too few law jobs.  The Panglossians deny that this is true, or argue that it doesn’t matter if it is.  In doing so, they depend almost entirely on wishful thinking masquerading as empirical assertion.  While we would all be very interested in any meaningful empirical evidence supporting the Panglossian view, I haven’t seen any to date.  And I have seen lots to the contrary.

Some of the Panglossian commentary is downright meanspirited, and takes the basic form that there are in fact lots of law jobs out there, but recent graduates are too lazy, too stupid, too greedy, or too ill-prepared by their law schools to claim them.  When any evidence of the existence of this sea of unclaimed jobs is offered, it is generally either the fact that there is substantial unmet need for legal services among the poor and middle class; or that Nolo Press and Legal Zoom are still in business.  Let’s be clear:  There are now tens of thousands of unemployed or underemployed recent law graduates out there dying to make some use of their legal education.  If they could make a living starting a practice at very low rates, they would do so.  That’s how labor markets work.  But as I have commented in this space previously, the poor are poor because they have no money; and the middle class have very little disposable income to devote to legal services not covered by insurance or contingent fees.  As for Nolo Press and Legal Zoom, they are successful in the marketplace precisely because they offer very basic legal services at prices that are cheaper than virtually any practitioner can manage to charge and continue to eat regularly.  Even still, there are plenty of ads for dirt-cheap flat-fee incorporations and uncontested divorces in your local yellow pages.  The low-price market is saturated.  Stop blaming the victims of a rapid and significant contraction in the entry-level legal job market for something they didn’t create and can’t overcome—which is what you're doing if you deny there are significantly too few law jobs, whether you do it by attacking recent law grads directly or by the tactics I turn to now.

Many Panglossian apologists suggest that everything is still just fine because a law degree has innumerable profitable uses beyond qualifying its recipient to get a license to practice.  An example can be found in a well-respected law professor’s comment on Dan Filler’s recent post on the plummeting numbers of LSAT takers.  This argument takes a range of forms that range from the (always unsupported) assertion that “lots” of the speaker’s graduates get “wonderful” jobs that make great use of a law degree but don’t require a law license, to the (equally unsupported) assertions that a law degree is ideal preparation for any line of work, a thoughtful life, the vicissitudes of holy matrimony, Monty Python’s Argument Clinic, or the searching examination that can be expected from St. Peter when the matriculant finally reaches the pearly gates.

I would be delighted to see any empirical evidence supporting these assertions, but unfortunately there isn’t any of which I’m aware.  Recent ABA employment outcome statistics devote a segregated category, called “JD Advantaged,” to jobs that do not require a law degree but for which the degree “provides a demonstrable advantage in obtaining or performing the job.”  This is an overinclusive definition, because what we really ought to be looking for are the jobs for which a JD provides a sufficiently substantial advantage in hiring, retention or advancement that the holder’s investment in the degree is justified.  After all, the fact that you get a job after graduating from law school, even one to which your legal knowledge is somehow relevant, does not necessarily mean that the job made the time and tuition worth it—especially if that job does not require a law license or even a law degree.  But in all events, what the ABA employment statistics show is that this “JD Advantaged” category of jobs is, for most schools, a small proportion of what anyone might call placement success.  Moreover, the number of such jobs for a law school’s graduates is significantly negatively correlated with that school’s prestige as measured by its US News ranking.  In other words, at the schools where graduates have the most employment options, they choose significantly fewer of these “wonderful” jobs, further suggesting that they are second-best (or considerably worse) outcomes.  As for the argument that law school somehow makes you so much better at everything that it’s worth whatever someone wants to charge you for it, I assume that requires no further discussion.

Finally, a few words about yesterday’s New York Times op-ed from the new dean at Case Western, unapologetically entitled “Law School Is Worth the Money.”  There are several postings already online pointing out astonishing deficiencies in this Panglossian effort’s coherence and empirical support (which I borrow from as well as add to below; three pretty devastating ones are here, here and here), but I want to dwell briefly on two particularly egregious examples. 

The op-ed argues that things are actually good for law grads today because the median law-job salary figure for 2011 graduates is $61,500.  But unless you look closely, you won’t see that this is the median salary only among those who actually have law jobs in the first place.  (The op-ed, and I, rely on statistics from NALP.)  In other words, the op-ed’s median salary number doesn’t appear to take into account the pay (if any) of those graduates who have no law job, or no job at all.  All told, that median is based on only the 36% of 2011 graduates who both had law jobs and reported their salaries.  And what that means is that only 18% of the class of 2011 (half of the 36% on which the median is based) were confirmed to have had JD-required jobs that paid more than $61,500.  In other words, the data on which the op-ed relies show that a randomly selected 2011 law grad had less than a one-in-five chance of getting a job as a lawyer that paid more than the $61,500 "median" salary that the op-ed offers as proof of a prospective law grad’s excellent prospects.

Similarly, the op-ed makes a great deal out of a comparison between a percentage of graduates who took jobs in private firms in 1998 (55%) vs. 2011 (50%), arguing that this shows that things are only a little worse now than they were at another time law-firm hiring was a relatively low portion of all law hiring.  It fails to mention that the cited fraction is not the portion of all graduates who got private firm jobs, but rather only the percentage of students who got law jobs in the first place and whose jobs were at private firms. And according to NALP, a much greater percentage of law graduates in 1998 got full-time law jobs in the first place (something like 80% of all graduates, or perhaps more depending on how you count), while approximately 55% of all 2011 graduates got jobs requiring a law degree.  In fact only 41% of law grads whose employment outcomes were reported to NALP got jobs at law firms.  And some of those jobs—after three years and $200,000 worth of law school!—apparently were as secretaries, paralegals or clerks, or were only part-time.  Take those out along with cases where a new grad is practicing as a solo (which is “getting a job” in name only), and less than 30% of the class of 2011 whose employment outcomes are known were employed at private law firms nine months after graduation.  So this statistic compares most of an apple with a very thin slice of orange. (Not to mention that it is a meaningless thing to worry about in the first place, as there are many excellent law jobs in government and nonprofits, and many low-salary and low-satisfaction jobs in private law firms.)

One other frankly bizarre assertion in the Times needs brief mention.  The op-ed argues that, even if entry-level hiring is at historic lows relative to number of graduates (which is likely the case even though the rest of the piece apparently tries to suggest otherwise), that doesn’t matter because first jobs don’t matter; it’s the subsequent positions that the law degree assertedly allows you to obtain later in life that really matter.  Of course, we have no longitudinal data on the future job prospects of initially unemployed or underemployed law graduates because there has never been anything close to so many at once before.  But does anyone seriously believe these folks are going to get a great second or third legal job without ever having had a first one?  Or that any discriminating legal employer is going to see two years of flipping burgers, stocking store shelves or selling jeans as good preparation for law practice?

I could go on, but others already have.  If a student turned in a paper with arguments like these in a class I was teaching on the legal profession, I know what grade I would give it.  I encourage you to draw your own conclusions.

I close this post by reiterating my initial point:  While none of this proves that the sky is as clear and cloudless as the Panglossian deniers would have you believe, none of it proves the sky is falling either.  The Pandemoniast view I will discuss next time is, in my view, just as overwrought and undersupported as the Panglossian one.  In the meantime, it’s time for the “Don’t Worry, Be Happy” crowd to impose on themselves the commitment to thoughtful and honest data-driven argument that I hope and assume they regularly urge on their students.  Dr. Pangloss, heed thyself. 

 --Bernie

Blogging The Ballot

For the next couple of weeks, the folks over at the Loyola LA Law Faculty Blog - Summary Judgments -  are focusing on issues important to the upcoming election.   They're calling the series Blogging the Ballot - thus the title of this post.  Michael Waterstone writes:

Through this series, "Blogging the Ballot," we will provide legal commentary that tracks the political issues. We will be posting every few days until the election on a broad range of issues, including election administration, human trafficking, foreign policy and free speech.

What a smart blogging idea!

What's on your mind?

Well, this weekend I've been reading scholarship in preparation for the hiring conference at the end of the week.  I'm always astonished at how thoughtful emerging scholars are.  And I'm inspired to attempt to write deeper work after reading their terrific scholarship.

It's been a while since we had an open thread here -- I think the last one was back in July.  So perhaps it's past time that we ask you to tell us what's on your mind.

Law Teaching and Legal Education

Thanks, Dan, for that very generous introduction, and thanks to the permanent denizens of the Lounge, and to its regular readers, for allowing me to hang out here for a little while.

Welcome to the Blogosphere: Worlds of Law

Mark Weiner has started a blog, Worlds of Law.  It begins in Wales.

Announcing Bill of Health, a New Harvard Law School Blog from the Petrie-Flom Center

Harvard Law School's Petrie-Flom Center announces its latest venture: a new blog, Bill of Health. I'm happy to say that I am among Bill of Health's large and diverse roster of bloggers, and will be cross-posting relevant content both here and there.

 

From the press release:

 

Our goal is to provide a one-stop shop for readers interested in news, commentary, and scholarship in the fields of health law policy, biotechnology, and bioethics. You can expect to find regularly updated posts reacting to current events, testing out new scholarly ideas, reviewing the latest books, and announcing conferences, events, and job openings.  We also hope to cultivate a strong community of commenters, so that the blog becomes an interactive discussion forum.

 

A widely collaborative effort, Bill of Health features content from Petrie-Flom affiliates, as well as leading experts from Harvard and beyond. Institutional collaborators include HealthLawProfs Blog, the Yale Interdisciplinary Center for Bioethics, and the Robert Wood Johnson Foundation's Public Health Law Research program at Temple. We've also lined up a stellar cast of bloggers so far, including:  Tom Baker, Cansu Canca, Arthur Caplan, Daniel Carpenter, Amitabh Chandra, Greg Curfman, Einer Elhauge, Richard Epstein, Nir Eyal, Michele Goodwin, Rebecca Haffajee, Russell Korobkin, Greg Koski, Katie Kraschel, Stephen Latham, Ted Marmor, Max Mehlman, Michelle Meyer, Abby Moncrieff, Efthimios Parasidis, Wendy Parmet, Frank Pasquale, Suzanne Rivera, Al Roth, Ted Ruger, Bill Sage, Laura Stark, Erin Talati, Nicolas Terry, Katharine Van Tassel, and Daniel Vorhaus. In addition, we'll be joined by some great guest bloggers in the coming months, including Mark Hall, Allison Hoffman, Adam Kolber, Jon Kolstad, Kristin Madison, Anup Malani, Arti Rai, Annette Rid, Chris Robertson, Nadia Sawicki, Seema Shah, Talha Syed, Dan Wikler, and Susan Wolf, as well as a several Petrie-Flom graduate student affiliates. Read more about our team here.

 

The Bill of Health bloggers will be introduced in batches in the coming days. We hope you'll visit and comment often.

Brown on Law Faculty Blogs and Disruptive Innovation

A few weeks back I talked about University of Denver Professor Jay Brown's census of law bloggers.  Now Jay's paper that uses his census data, "Law Facutly Blogs and Disruptive Innovation," is up on ssrn as well.  Cribbing now from the abstract:

The role of blogging in legal academia has been much debated. Some view the discipline as the antithesis of scholarship, a medium that allows faculty to broadcast ignorant or confused opinions. Others have viewed blogging by law faculty more favorably, focusing on the approach as a means of promoting traditional scholarship. 

While the debate has been ongoing, the matter has largely been resolved by actual practice. In the realm of legal scholarship, faculty law blogs are a disruptive innovation. Disruptive innovation usually connotes the introduction of a new technology that eventually destabilizes an existing market. Often, the technology, when introduced, is inferior and not perceived as a threat. Over time, however, the technology improves and migrates from a market niche and becomes the reigning standard.

Law faculty blogs arose in a state of nature and were often perceived as inferior technology used by faculty to convey random, often personal, views. Over time, however, a recognized class of law faculty blogs emerged, with at least one having been cited 45 times in court opinions and another having been cited by over 700 times in assorted legal publications. Widely read and regularly cited, they offered a superior method for the rapid dissemination of some types of legal analysis and facilitate the introduction of ideas into an ongoing debate. They also provide a form of intermediation that discourages low quality posts. 

Law faculty blogs provide a form of scholarship that fills a gap left by traditional law reviews. Law faculty blogs overcome the slow publication process and dense analysis that often prevents traditional law review articles from playing a role in an ongoing debate. Said another way, law faculty blogs have altered the continuum of legal scholarship and reduced the role of traditional law reviews. Efforts by law reviews to fight back through the implementation of online supplements has so far failed. 

Law faculty blogs have also had a disruptive impact on the determination of faculty reputation. Blogging allows law professors to route around the traditional indicia of reputation such as the frequency of publication in elite law journals. Providing a “prominence” dividend, faculty who blog are able to advertise their expertise through substantive posts and become better known to practitioners, academics and decision makers. This type of reputational benefit can be seen from the correlation between sustained blogging and SSRN downloads. 

Blogging can also disrupt law school rankings. With reputation the single largest component in the rankings, law blogging can be used by some law schools to increase name recognition in a cost effective manner. In other cases, blogging can increase awareness of a law school’s faculty, elevating the overall reputation of the institution. Both can improve a law school’s relative rank.

I think you'll enjoy the paper.  The data that Jay uses in this paper are available here.