Empirical Legal Studies

WSJ Article on Legal Job Market, Transfer Students, and Alternative Law School Rankings

Wall Street Journal reporter Amir Efrati continues to make a name for himself by aggressively covering the legal education beat.  Today's WSJ page B1 story (How to Cut Debt, Boost Job Prospects from Law School) lays out some the calculus that prospective law students  should consider in making the decision to enroll in law school.  It also includes reference to the benefits of transferring to a national law school after a successful 1L year at a lower ranked institution; in my last post, I learned that this is a very sensitive topic.

The story contains a quote from me and a reference to an alternative law school ranking that I am working on with Andy Morriss (Illinois Law).   I would like to add two key pieces of context:

• Chances of landing a large law firm job.  In the story, I am quoted, "If you go to a school ranked 35th or 40th over one that's ranked 70th or 80th, you are by no means substantially increasing your chances of landing a high-paying job."  This is more than just my opinion.  When I made this statement, I was looking a data that took months to compile.  Further, the same analysis holds true when you compare, say, the 25th or 30th with the 50th or 60th.   My point is simple: a higher rank in US News does not necessarily provide students with an opportunity set that justifies a price premium.  That will be the central takeaway of our alternative ranking--from a student perspective, over-reliance on US News can be a big financial mistake.

• Alternative rankings.  The story notes that our alternative rankings will include large law firm employment.  Our project, however,  is actually much broader than that.  If a student wants to preserve maximum financial flexibility upon graduation in order to pursue a variety of interesting legal jobs (government, public interest, small firm practice) with little or no law school debt, we will show students how to do this calculus using actual law school data.

As I have said before, the future of legal education is driven by labor markets.

Round-up of Advice for Erwin Chemerinsky

My good friend Paul Caron has created a single post at TaxProf that collects, in alphabetical order by author, all the advice for Erwin Chemerinsky.   In total, forty lawyers, law professors, and administrators contributed to this series.   Although Paul and I got the ball rolling for this series,  soliciting dozens of submissions, it was Paul who did the editing, posting, and collecting all the wonderful links.   Paul, you did a fabulous job.

I am confident that we have collectively supplied some very good ideas.   It is up to Erwin to find the golden nuggets.  We wish him much success at UC Irvine Donald Bren School of Law.

Indiana Lawyers and WSJ Article on Legal Job Market

The blogosphere is abuzz with Amir Efrati's excellent WSJ page-1 story on the changing legal job market (see TaxProf, Prawfsblawg, Legal Ethics Blog, Ideoblog, and Leiter).  Afrati's story took a lot of factual investigation, and I applaud him for tracking down so many relevant sources.  Prospective students will benefit.  In addition, the ABA is sure to take notice. 

One of the graphics in the WSJ story was based on my recent survey of ISBA lawyers, though you have to dig to find it.  Thus I am posting it here.  This chart is a breakdown of change in lawyer income over the last five years (excluding retiring lawyers), broken down by respondent's firm size:

Advice for Erwin Chemerinsky

This was a good week for me because Erwin Chemerinsky accepted the deanship at UC Irvine.  I have never met Erwin and, beyond his excellent reputation as a scholar, have no special knowledge of his skills and abilities.   But UC Irvine had (and once again has) it all: brand, in-state tuition, location, resources, and a whistle clean slate.  When the UC system hired and fired him all in the course of week, I was convinced that the last, best chance to do something truly unique in legal education--with a reasonable shot a success and wider influence--had been destroyed. 

Amidst the enormous national attention generated by the Chemerinsky episode (see roundup of coverage, see here.), Paul Caron and I want to use this moment to generate and publicize the best ideas about reforming legal education from some of the leading thinkers in the law school world. Next week, TaxProf Blog will begin posting the answers of university presidents and provosts, and law school deans, faculty, students, and career planning professionals, to this question:

What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Each contribution will be limited to no more than 250 words (no exceptions).  Although we are soliciting contributions, I would be happy to consider unsolicited postings, particularly from students and practicing lawyers.  You can email me here (no guarantees, however, that Paul and I will use it).

Michael Dorf on Moneyball

In my last post, I had a throw away line on Columbia law professor Michael Dorf.  For those following the link I provided, the clear implication was that Dorf's comments on the Chereminsky affair -- e.g., "[e]ven solid but middling-ranked law schools can have at best a marginal impact on the course of legal education" -- was evidence of Dorf's overconfidence in his own judgment.

Dorf picked up on the Moneyball theme in the comments section, claiming that he in no way endorsed the data-blind approaches of traditional baseball scouts.   Professor Dorf then extended the baseball analogy to buttress his underlying point: 

“[A] discerning reader will see [from Dorf's original post and subsequent qualifying comments] that I was making a quite different point:  I was guessing [to some of us, it looked like concluding] that elite law schools could do a middling job at actually educating students and still not suffer serious reputational hits, because their students' talents cover up for this. (This is why the Yankees have been a good team even though they didn't follow the path of Billy Bean: their huge war chest covered up their errors.) I don't deny that eventually good innovations win out but I say that it will likely require a market leader to make the process work. Thus, the Boston Red Sox have been more successful using Bean's strategy than the A's were, because the Sox have done it with more money.

Sure, money / starting position matters.  But the fact remains that virtually all major league clubs now employ the techniques originally created by a small market ("middling-ranked") team.  Far from having a "marginal impact",  these innovations revolutionized baseball.

Starting with a clean slate, could Chemerinsky do the same at UC Irvine?  I suspect a large number of deans would love to play his hand:  (1) the UC brand and faculty benefits, (2) a public tuition subsidy for students, (3) a spectacular geographic location adjacent to a vibrant legal market, (4) the ability to select an entire faculty based on a unique institutional vision, and (5) seed money from private donors. 

In our empirical work on law school rankings (here and here), Andy Morriss and I found that (a)  proximity to large legal markets and (b) low cost (e.g., public school or low avg debt) are both drivers of higher LSAT scores over time.  UC Irvine has both of these advantages.   Further, if UC Irvine can document that its innovative teaching adds more value in three years (a LONG time) than its tradition-bound competitors, then employers (and eventually students) will move the market.  How elite is a law school when students and employers find a better value downstream?

At present, we do not know the potential benefits of innovative teaching methods on human capital--e.g., can the gains be permanent and persistent, trumping raw ability (as measured by LSAT scores, far from perfect) over time?  This is an important empirical question.  I know that some legal educators assume the answer is no.  Because the stakes are so high, I would prefer to see the data.   

If law schools -- during the course of three years -- can add substantial and persistent value beyond raw aptitude, the innovators (and I hope Chemerinsky is one of them) could get a huge competitive advantage, at least until the elite schools are pressured by market forces to learn and apply those same innovations.  And this would be far from a "marginal impact".

Today's WSJ Op-Ed, "Mismatch" Hypothesis, and ELS Blog Forums

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).

The Empirics of Age, Entrepreneurship, and Creativity

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).

Statistics and Splitting the Ninth Circuit

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.

SCOTUSblog Statpack

On the very day that the Supreme Court released its final opinions of the term, the folks at SCOTUSblog made available their statpack   Available for downloading in its entirety or in parts, the statpack includes:
1. End of Term Summary Memo, principally by Ben Winograd
2. Justice Agreement – All cases
3. Justice Agreement – Non-unanimous cases
4. Visual Representation of 5-4 decisions, principally by Ben Winograd
5. Opinion Tally, principally by Adam Chandler
6. Circuit Scorecard
7. Decisions by Final Vote
8. The Court’s Workload
9. Opinion Authors by Sitting
10. State of the Docket for OT07
Thanks very much to SCOTUSblog for providing this resource.

ABA Moves to Tighten Bar Standards: What it Means

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:

1. "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 bar exams."                                                                                  
2. "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.

The Fairness Doctrine: Sampling Fairly

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.)

Last One on ELS and Paternalism (Blumenthal guest)

One last point about ELS and paternalism, on the third objection I identified--that paternalism reduces people's opportunities to learn.  And with this one I'll be brief.

Again, there are at least two reasons to encourage learning from mistakes.  One is so that people come to know an objectively better solution to a particular question or issue or judgment; a second is that such learning can be a rewarding, valuable experience in itself.  I referred to Klick & Mitchell's recent work on paternalism, where they discuss the learning issue; David Shapiro phrased the second theme nicely some time ago, suggesting that "the very ability to choose--which necessarily implies the ability to make poor choices by some objective standard--is critical to the growth of our diverse intellectual, emotional, and volitional capacities."

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.

Google Reader

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.

Seat Belts, Paternalism, and New Hampshire--"Live Free and Die?" (Blumenthal guest)

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."

Paternalism, of course (whether asymmetric, libertarian, emotional, or other), is increasingly discussed in legal academia.  Much of the connection to ELS is in the context of evaluating whether particular interventions (as just one instance, Thaler and Benartzi's SMarT investment approach) in fact improve welfare on some specific outcome.

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.

Berkeley's JSP & "How Things Can Change Over Time"

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).