Empirical Legal Studies

Transfer Students, Part-time Programs, and US News Rankings: A Response to Ribstein

Larry Ribstein and I are having an exchange on the facts and significance of law school transfer policies.  Following up on my prior post, Larry takes me on over at Ideoblog.  Note that Brian Leiter got the ball rolling yesterday with this post.   Larry is such a formidable intellect that I will surely lose this debate if I remain cornered in his comments section, where I cannot effectively present more data.   Sometimes your own blog comes in handy.

In a nutshell, here is Larry's argument:  I don't have solid evidence that a large number of schools have embraced a class-shrinking policy; further, a .37 gain in a school's median LSAT in exchange for a 10% decline in full-time class size is too big a price for too small a prize [no one had these parameter estimates at the time!].  Hence, the existence of the transfer gaming strategy is speculative.  Since all law schools are trying to be as selective as possible on entry level LSAT scores, why not compensate for some of this underinclusion of qualified people by admitting proven performers as transfers?  If we fully disclose and understand the risks, the costs will be properly internalized by prospective transfer students and law schools.  Under this analysis, Larry surmises there is no obvious right answer on transfer policies.

Larry underestimates the data.  Before reviewing the significance of the statistics in the table below, it is important for readers to understand the basic calculus for gaming the US News LSAT variable:   

• The median for full-time enrollment is the only measure that matters.  PT and transfer statistics are irrelevant.
  
• Most schools are tuition dependent and cannot afford to shrink the 1L class without a countervailing revenue stream.
• One revenue neutral strategy is starting or expanding part-time programs, applying less stringent standards to PT admits, and letting students transfer to FT after the first year.  This strategy, however, is not going to be very effective for a non-urban law school.
• Another is constricting the 1L class (to get the credentials boost) and making up the revenues through more liberal transfer policies.  This strategy, however, only works if a school has plausible lower ranked schools to draw from.  Florida State, with cheap in-state tuition and many lower ranked schools in the state,  fits this profile, though the magnitude of their transfer program (#1 on Leiter list at 24.6%) is pretty shocking.
  

Knowing that shrinking FT 1L enrollment is the lynchpin of the gaming strategy, here is the mean and "left side" of the FT% change distribution--i.e., the schools with lowest growth/largest shrinkage in full-time 1L enrollment.

Note that the data are compiled by quartile because the first full USNWR rankings predated the current "tier" format.  Some observations:  (1) the average change in FT 1L enrollment was positive throughout the law school hierarchy; (2) nonetheless, in each quartile, 25% or more of all law schools shrank their 1L FT class between 1992 and 2004; (3) schools with part-time programs tended to have the largest declines/smallest growth in full-time 1L enrollment, presumably because transfers AND part-time gaming were available to them; (4) the minimum FT% change variable is very low in most cells--why?  I have heard of schools that created "special" summer programs that excluded large numbers of full-time students from their ABA and US News numbers.   If all the surrounding facts became know regarding these programs, it may shock the conscience of most readers, including us lawyers.

The bottomline is this:  64 law schools shrank their 1L full-time entering class between 1992 and 2004, 27 by more than 10%.  At the same time, PT enrollment has boomed and the number of PT programs has grown (by 10 in quartiles 3 and 4).  We don't have transfer data for 1992 to 2004 because the attrition data was only published beginning in 1997, when the ABA-LSAC Official Guide began publishing in a standardized format to respond to pleas from US News that law schools were lying to them.  See Measuring Outcomes, at 11-12.  But the 1997 to 2005 data shows large increases in non-academic 1L attrition, which is the category that includes outbound transfers.

With these trend lines in place, it is easy to see the flaw in Larry's normative defense of liberal transfer policies:   

[Because we have no solid evidence of class shrinkage policy,] the overall conclusion is much more ambiguous than the one Bill draws. The tradeoff would seem to be one of adverse social impact for more opportunity for students who prove themselves to "trade up." With adequate disclosure of the risks, those tradeoffs are internalized by the students and the schools.

Because it is harder to get admitted as a full-time 1L at many law schools (because the entering FT class has shrunk),  these displaced students will be pushed into the transfer market to upgrade the pedigree of their JD degrees.   Sure, we can disclose the risks identified by LSSSE (we could but we generally don't) and presume that our students are all adults and thus can weigh the costs and benefits of transferring.   But collectively, the shrinking supply of 1L FT slots, at least at schools with some regional or national market power, has forced these trade-offs on a larger number of students.  In light of the LSSSE data, more 1L admissions under whole person review (and thus fewer slots for transferring 2Ls) would improve the social networks and law school experience of many students.   Further, the creaming of transfers saps the ability of lower ranked schools to reap the benefits of their innovations.   

Frankly, I don't see any plausible reading of these facts that make students, as a group,  or legal education as a whole (rather than individual, higher ranked law schools) better off.   

Transfer Students -- The Data

Brian Leiter has just posted rankings of the Top 10 law schools by percentage of transfer students.  See Schools that Take the Largest Number of Transfers (Relative to the Size of Their 1L Class).  It is generating a lot of traffic, see, e.g, Paul Caron and Larry Ribstein, in part because Brian names names. 

Last fall I posted charts that showed the same data ordered by 2007 U.S. News rankings.  I took a lot of heat in the comments from readers who wanted to defend these liberal transfers--many by people who benefited from the ability to trade up.   This system of liberal transfers has other defenders as well.  For example, professors at higher ranked schools often justify these policies by arguing that they are opening doors for hardworking students who have proven themselves.  My critique, however, was based on a macro-level social wealth perspective--i.e.,  do the benefits of liberal transfers policies outweigh the costs?   Here are some facts:

More transfers.  Between 1997 and 2004, non-academic 1L attrition, which is the ABA-LSAC Official Guide category that would include transfers, has increased at statistically significant levels.  See Morriss & Henderson, Measuring Outcomes, Fig. 2 and accompanying text.  I would posit that this coincides with a rankings payoff of higher entering credentials, not a rethinking of admissions policies driven by principles of equity and opportunity.  We should not confuse colorable justifications, which lawyers are expert at, with underlying motivations of self-interest.

Rankings gains.  By the way, these gaming strategies actually produce higher LSAT scores relative to non-gaming schools.    See Henderson & Morriss, Student Quality as Measured by LSAT Scores, at 191. 

Effects within schools.  According to the 2005 LSSSE Annual Report, transfer students were less likely to:

• Perceive their relationships with other students to be as positive as students who did not transfer.
• Work with other students outside of class to complete an assignment.
• Have serious conversations with students who are different from themselves.
• Discuss ideas from reading or assignments with others outside of class.
• Work on a paper or project that required integrating ideas.
• Participate in cocurricular activities.

P. 14-15.  The report continues, "These findings underscore that many of the strongest student relationships are formed during the first year of law school before transfer students join the campus community."  (p. 15). Note these findings describe group results.  Please spare me anecdotes in the comments about well-adjusted transfer students.  We cannot generalize, and thus make policy, from individual data points.  We need a representative sample, which LSSSE provides.

Harms to Curricular Innovation.  If the best students from Tier 3 and 4 are siphoned by Tiers 1 and 2, lower ranked schools have one hell of a time demonstrating the value of their curricular innovations.  And these innovations often require immense commitments of time and money.  The substantive value may be there, but the school will not get an adequate return on the investment.   So incentives to innovate are diluted.

So my point is very simple:  Instead of shrinking the 1L class and taking more transfer students, a better system would admit more 1L students using whole person review (the policy that all of the legal academy allegedly embraced in the Grutter litigation) rather than a cynical numbers-driven approach designed to maximize entering credentials for U.S. News purposes.   I realize that some people would be made worse off under this system (and these people tend to know who they are, so they are noisy).  In contrast, the people who would benefit are largely nameless and invisible.  But this approach eliminates the educational costs of excessive transfers and preserves incentives for healthy institutional competition based on curriculum and teaching.  From a social wealth perspective, which is better?

At the end of the day, the increase in transfers represents a giant collective action problem.  But it could be solved if U.S. News reworked its methodology.   The putative regulator here is the ABA Section on Legal Education and Admission to the Bar.  Are they even paying attention?  I often wonder.  After the jump are the charts that show net transfers by U.S. News rank.  It is very ugly.

Trial Court Experience and Appellate Court Decisions

In The Effect of Trial-Judge Experience on Appellate Decisionmaking Behavior, Nick Linder and John Niles (both at Duke) report results from a study that analyzes "3,222 appellate votes from criminal sentencing cases that came before the U.S. Court of Appeals for the Ninth Circuit between 2003 and 2007, " and controls for an array of factors, including trial-judge experience, that might influence appellate decisionmaking behavior.

The authors find that although prior experience as a state trial judge causes an appellate judge to be more likely to vote to affirm, neither experience as a federal trial judge nor experience from both state and federal trial benches has any statistically significant effect. Finally, the effect of state trial-judge experience diminishes when lower courts have greater discretion.