Today's WSJ Op-Ed page includes an essay (regrettably, a direct link is not possible w/out a subscription) that relates to a recent ELS Blog Forum featuring work by Richard Sander (UCLA) and responses to that work by Richard Lempert (Michigan).
Over at Conglomerate, Gordon Smith briefly discusses and links to a blog entry by Marc Andreessen that takes up the query: "Is entrepreneurship more
like poetry, pure mathematics, and theoretical
physics -- which exhibit a peak age in one's late 20s or early 30s --
or novel writing, history, philosophy, medicine, and general
scholarship -- which exhibit a peak age in one's late 40s or early 50s?" The Andreessen post includes snippets from a 1988 paper by Dean Simonton (UC Davis, Psych). Evidently, Prof. Simontron has conducted "extensive research on age and creativity across many other fields, including science, literature, music, chess, film, politics, and military combat."
Replace the term "entrepreneurship" with "legal scholarship" and you'll see why such research might interest legal scholars (of all ages).
A friend of mine, Brian Fitzpatrick of Vanderbilt Law School, published an op-ed in the LA Times yesterday regarding whether a split of the Ninth Circuit would result in fewer "extreme" opinions. He assumes that there are six "extreme" judges in the Ninth Circuit, and that a split will result in three "extreme" judges in each circuit. Over at SCOTUSblog, we point out a number of problems with Brian's assumptions and calculations, see here. Over at Volokh, Frank Cross weighs in on the issue here.
Leigh Jones of the National Law Journal has a story on a proposed ABA bar passage requirement that would set brightline benchmarks as a condition of accreditation. According to a recent ABA News Release, an ABA-accredited law school would have to satisfy at least one of two criteria:
"Under the first option, a school would have to
show that in three or more of the most recent five years, in the jurisdiction
in which the largest proportion of the school’s graduates take the bar exam for
the first time, they pass the exam above, at or no more than 10 points below
the first-time bar passage rates for graduates of ABA-approved law schools
taking the bar examination in that jurisdiction during the relevant year. For schools from which more than 20 percent of graduates take their first bar examination in a jurisdiction other than the
primary one, the schools also would be required to demonstrate that at least 70
percent of those students passed their bar examination over the two most recent
"Schools unable to satisfy the first alternative still could comply by
demonstrating that 80 percent of all their graduates who take a bar
examination anywhere in the country pass a bar examination within three
sittings of the exam within three years of graduation."
There are a lot of potential problems here. Foremost is the huge variation in bar passage standards from state to state. In every jurisdiction, the ostensible purpose of the bar exam is to screen for "minimal competency" in legal knowledge. But the wide range in MBE cut scores and "equating" practices (which convert essay and MPT scores to the same scale and distribution as the MBE) has been aptly described by Gary Rosin (South Texas Law) as "federalism run amok." See Unpacking the Bar: Of Cut Scores, Competence and Crucibles (May 2007).
Second, the testing taking population varies enormously from state to state. See Morriss & Henderson, Measuring Outcomes (2007). Because of the explosive growth in the corporate law sector, large number of top law students from across the country take the New York, Virginia, and California bar exams. Further, this trend will only become more pronounced in the coming years. This means that lower-ranked schools in these jurisdictions (or bordering states, who will likely be affected by the 20% graduates/70% passage rule) will be tilting into ever-greater headwinds.
On Fox News Sunday, Senator Diane Feinstein said she is considering
whether the Fairness Doctrine should be revived because “there ought to be an
opportunity to present the other side. And unfortunately, talk radio is overwhelmingly
one way.” According to The Hill, the Fairness Doctrine is generating increased
interest in Congress. So far, Exhibit A in this discussion is the new report
from the Center for American Progress and Free Press, which attempts to
document the imbalance in talk radio and comes out strongly in favor of
government regulation to undo “the move toward lowest common denominator
syndicated programming.” (p. 8) The report actually argues the Fairness Doctrine alone would be insufficient to remedy the imbalance and calls for more changes.
In part, the report bases its evidence on a non-randomly selected
sample of the roughly 1700 radio stations classified as news/talk. The analysis includes the 257 news/talk radio stations owned by the Big Five station
owners, Clear Channel, CBS, Citadel, Cumulus, and Salem. During the month of May 2007, 91
percent of the weekday political talk radio programming on these stations was
conservative and 9 percent was progressive (or liberal). The report adds that 236 of these
257 stations (92 percent) “do not broadcast a single minute of progressive talk radio programming.” (p. 3) However, many of these stations probably don’t broadcast any political talk at all. About one-third of the 65 news/talk stations listed in Appendix C of the report lack any identified conservative or progressive talk.
The explanation for how the imbalance indicates a market failure is based mainly on a PEW study from last year. It found the national
talk radio audience to be 43 percent conservative, 30 percent moderate, and 23
percent liberal. (PEW p. 38) These PEW numbers supposedly show there is unmet demand for
progressive programming; however, the report does not disaggregate these
national numbers and identify how many regions of the country actually have enough demand to sustain progressive programming but nevertheless have no supply.
With the programming so
ideologically lopsided in the aggregate, perhaps it should be obvious that
there is substantial unmet demand somewhere -- for example, the report says eight of the ten radio markets in Ohio have no progressive programming at all (p. 7) -- but the report is not convincing in explaining how the
market is unresponsive to demand, either nationally or at the local level. The report speaks of syndicated conservative programs as
having “artificial economies of scale” (p. 8), though the artificiality of
the market is seemingly attributed to a lack of vigorous government regulation.
Setting aside why the market for talk radio is the way it is, I’ll focus on a sampling issue in this post. I'll save a coding quibble and some thoughts on an appendix of the report for a later post. (Appendix D provides some evidence that minority owners and owners of only a single radio station are more likely to broadcast progressive programs.)
Of course, for learning to be helpful in either case there must be not only the opportunity, but also the ability and the motivation to learn. Well-known psychological research (e.g., reviewed here), as well as more recent neuropsychological findings, show that people are prone to confirmation biases or "motivated reasoning," where individuals prefer information that will support already held beliefs or attitudes. Personality factors (such as dogmatism), knowledge factors, and social factors (such as our perceived similarity to someone who might make a similar mistake) influence whether we learn from our mistakes--the psychologist to whom Klick & Mitchell refer suggests in his review that because of such factors, "learning is by no means automatic when people are shown the errors of their ways."
And, of course, there must be a second chance. The New Hampshire drivers who suffer fatal accidents because of not wearing a seat belt don't learn to use one the next time. Some scholars have suggested that paternalism may thus be more appropriate in contexts where decisions can have "irreversible consequences."
I said I'd be brief. And in the blog context, my goal is more to raise issues for discussion and empirical research than to refute or defend particular lines of argument. But I would suggest that for the "learning" objection, as with the knowledge-of-preferences and autonomy arguments, empirical research--rather than just ipse dixits--will be helpful in furthering such discussions.
I realize that quite a few readers have already moved to blog reader or aggregator software, but I finally made the switch (to Google Reader) a couple of weeks ago. This post is for the remaining stragglers.
In a nutshell, if you like reading blogs, you will love the speed, efficiency and organization provided by Google Reader. It is very easy to use and relatively intuitive to learn. I am told there are better readers out there, and I will eventually explore those.
But for the moment, my reading of blogs (or anything with an RSS feed) has become a lot more fun.
The New Hampshire State Senate recently rejected a bill that would have mandated seat belt use for all adults. According to the media, New Hampshire is the only U.S. state without some such law. The discussion involved, unsurprisingly, issues of paternalism and "being told what to do"--squibs from earlier stories in the New York Times noted that "For many residents, buckling up and being required to buckle up are 2 different things," and one proponent of the bill noted that the debate "harkens [sic] to the libertarian 'don't tell me what to do' streak that characterizes much of [NH] politics." The Times stories also noted that "New Hampshire has the lowest rate of seat belt use in the country, 49.6 percent," and that "77 percent of fatal crashes in the state involved occupants who were not wearing seat belts."
Less empirical analysis, I think, goes to the justification of such "paternalistic" intervention, and I hoped to post a few comments in that context, using the New Hampshire example as a vehicle [sorry, pun intended] for mentioning empirical research relevant to some of the usual objections to "telling someone what to do." Existing empirical work may indicate that we need to look a little harder at such objections--and I think providing empirical grounds for such a discussion is a fruitful effort for ELS in any context.
Offhand I can imagine at least five such objections, falling roughly into three categories. First is the classic Millian notion that people know their own preferences, and as a result are best at identifying and choosing their own preferences. Second is the classic autonomy argument: people's freedom to choose should be valued per se ("don't tell me what to do!") ; relatedly, people's preference for the freedom to choose should be valued per se. Third, people learn from their mistakes, and should therefore be allowed to make them--perhaps simply for the substantive benefit of learning what is correct, perhaps to "build character." Jon Klick and Greg Mitchell get at this third category in their recent response to libertarian paternalism (among many other points, of course).
(At least two other objections, mentioned recently by Ilya Somin on the Volokh Conspiracy, involve the accountability of chosen "experts" who make paternalistic decisions and whether those experts should get the final word. A related one, of course, involves public choice and capture. I'll set those aside to the extent that they involve evaluation of the means of effectuating interventions once it's decided that paternalism is appropriate [except where Somin, for instance, notes that "Although the expert is more knowledgeable than I am about technical issues in his field, I am more knowledgeable than he is about my own values"--the first category identified above].)
Again, my goal is not to take sides, but rather to point out another instance of ELS's potential to advance a substantive policy discussion. In short upcoming posts I'll try to identify some empirical research relevant to each of the five objections above.
Interesting post and discussion developing over at PrawfsBlawg about the social history of Berkeley's JSP program germane to the politics of scholarship in particular and empirical legal studies in general (and by implication).
While Michael linked to the paper below, it is also the subject of a NY Times article entitled Study of N.B.A. Sees Racial Bias in Calling Fouls. Two highlights from the article: First, the caption under the headlining photo--"Minnesota Timberwolves guard Mike James, left, said he did not think he was treated differently by white and black officials"--says a lot about the need for systematic empirical inquiry. Second, the NY Times engaged in peer-review--"Three independent experts asked by The Times to examine the
Wolfers-Price paper and materials released by the N.B.A. said they
considered the Wolfers-Price argument far more sound." The article also discusses multivariate regression and Dallas Mavericks owner Mark Cuban's viewpoint on statistics. It's a must read!!!
Peter Lattman at the WSJ Law Blog is asking readers whether Professor David Cole's no laptop policy is a good idea. Cole, who teaches at Georgetown Law, published an anti-laptop essay in the Saturday Washington Post. Like Professor Cole's students, the comments appear to be favoring the ban. But there are some dissenters.
Perhaps this is the knotty empirical question that lies beneath this controversy: What if final exam performance is maximized by laptop transcription, but the quality of class discussion is maximized by no laptops? I think there may be some truth to this. Many students claim that laptop notetaking helps them better distill the information after class. If so, it is quite a conundrum.
Last year at this time, I posted the first incarnation of the Hylton Law School Rankings. "The Hylton Rankings rank American law schools in an order which
reflects the way that they are regarded by law school professors and
students. The Rankings are named for
their compiler, Professor J. Gordon Hylton of Marquette University.... Unlike the US News ratings, the Hylton Rankings
list law schools from #1 to #184."
A recently published story in The American Lawyer asks the salient question, "Is Raising Salaries the Best Way to Retain Associates?" It is always great to get an unsolicited $20,000 raise, but what if your real gripe is that you work too many hours and your physical health and family life are falling apart? Or that there is no communication on partnership chances, making sticking around too risky? It is possible that managing partners and executive committees do not know the actual price points--monetary and non-monetary--of their associates.
Some of the findings presented in my essay with David Zaring, "Young Associates in Trouble," suggest that these law firms may, in fact, be throwing good money after bad. In the table below, which is based on data from the Am Law Midlevel Associate Survey (3rd, 4th, and 5th year lawyers), the dependent variable is likelihood on a 1-5 scale that the associate will remain with the firm during the next two years.
The regression results tell a very straightforward and intuitive story:
Carrots. Midlevels are more likely to stick around if
(a) they do interesting work or work on quality projects (which I
suspect means career enhancing), (b) are given cues on partnership
prospects, or (c) the firm has a large nonequity tier (this study explains why this is attractive to non-rainmaking lawyers).
Sticks. Midlevels are less likely to stick around when the hours are long and the environment is less family friendly.
Irrelevant. Controlling for all of these facts, higher
salaries and bonuses appear to have no statistically relationship to
Midlevel's self-reported likelihood of staying with the firm.
As a follow-up, I would point out some excellent psychology-and-law resources (sorry; now that I teach it at a law school, it's "law-and-psychology" - sort of emphasizes the point, doesn't it).
First is the American Psychology/Law Society, founded in the late 1960's; with annual conferences highlighting the most current and topical research in legal psychology. The website has links to various newsletters of the Society, which include conference programs in order to see who is doing what sort of empirical research.
Second is the Society-sponsored, peer-reviewed journal, Law and Human Behavior, published by Springer. Publishing top-quality empirical research, LHB is consistently one of the most highly-cited non-law-review journals. The topic areas are often limited to the "traditional" psych-and-law topics I've mentioned before, though - forensics, eyewitness, juries - and I am sure that its editors would welcome a broad range of submission topics of the sort that ELS people here investigate.
Both APLS and LHB are good resources for finding primary research and empirical, interdisciplinary collaborators (JD/PhD's are not uncommon in APLS) - IMHO, both can help as the ELS field continues to develop.