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July 31, 2017

Focus group of California lawyers defends tight restrictions on entry into the legal profession (Michael Simkovic)

California is an extreme outlier in the extent to which it restricts entry into the legal profession compared to other U.S. jurisdictions.  Two examples of this include an unusually high minimum cut score on the bar exam and a refusal without exception to permit experienced licensed attorneys from other jurisdictions to be admitted without re-examination.

California lawyers are relatively highly paid, and relatively few in number considering the size of the workforce in California.  Restrictions on entry into the profession may help maintain this status quo.  There are serious questions about whether this protects consumers, or is economic protectionism.  Economic protectionism could benefit California lawyers, but it would likely also harm consumers of legal services by making legal services less available, more expensive and perhaps lower in quality because of reduced competition.  Protectionism would also reduce economic opportunity for those denied the option of practicing law in California, much as immigration restrictions deny economic opportunity to those excluded from high-income countries.

The Supreme Court of California, concerned about the anti-trust implications of a licensed profession establishing criteria for entry, instructed the California State Bar to prepare recommendations on revising the California bar cut score.

Stephen Diamond reports that the California State Bar recommended that its bar examination should either stay the same or be made even harder.  

The California Bar arrived at this conclusion by asking a panel of California lawyers how hard the bar exam should be.  To be more specific, panelists read essays, categorized them into good, medium and bad piles, and, with the assistance of a psychologist who specializes in standardized testing, used this categorization to back-out an extremely high recommended bar passage score.  

Finding that people with high multiple choice scores also tend to write better essays is about as surprising as finding that cars that Consumer Reports rates highly are also often highly rated by J.D. Power.  It's also about as relevant to the policy decision facing the California Supreme Court about minimum competence to practice law.

The relevant question for restricting entry into the legal profession is not whether good (and presumably expensive) lawyers are better than mediocre (and presumably more affordable) lawyers.  Rather, the relevant question is when consumers should be able to decide for themselves whether to spend more for higher quality services or to save money and accept services of lower quality.  Most people will agree that a new Lexus is likely a better, more reliable and safer car than a similar-sized used Toyota.  But this difference in quality does not mean that the government should banish used Toyotas from the roads and permit to drive only those who are willing and able to buy a new Lexus. 

Is there evidence that a bar examinee who would be permitted to practice law in Washington D.C. or New York or Boston or Chicago, but not in California, would routinely make such a mess of clients' affairs that California clients should not even have the option to hire such a lawyer?

Is there evidence that consumers of legal services cannot tell the difference between a good lawyer and a dangerously bad one?  

If these problems exist, could they be addressed by simply requiring lawyers to disclose information to prospective clients that would enable those clients to judge lawyer quality for themselves?  

The California Bar has not yet seriously addressed these questions in arriving at its recommendations.

The California Bar also reported that other states have sometimes recommended increases or decreases to their own bar examination cut score.  But these states are almost all starting with much lower bar cut scores than California's baseline.  It appears that few if any other states recommended bar examination cut scores as high as California's.

Posted by Michael Simkovic on July 31, 2017 in Guest Blogger: Michael Simkovic, Legal Profession, Science, Weblogs | Permalink

Lateral hires with tenure or on tenure-track, 2016-17

MOVING TO FRONT FOR THE LAST TIME--ORIGINALLY POSTED AUGUST 1, 2016

These are non-clinical appointments that will take effect in 2017 (except where noted); I will move the list to the front at various intervals as new additions come in.   (Recent additions are in bold.)  Last year's list is here.

 

*Aviva Abramovsky (commercial law, insurance law, financial regulation, legal ethics) from Syracuse University to the University at Buffalo (to become Dean).

 

*Ifeoma Ajunwa (privacy, health law & policy, antidiscrimination law) from the University of District Columbia Clarke School of Law to Cornell University Industrial and Labor Relations (with a courtesy appointment in law as well) (untenured lateral).

 

*Richard Albert (constitutional law, comparative constitutional law) from Boston College to the University of Texas, Austin (effective January 2018).

 

*Erez Aloni (family law, contracts, law & sexuality) from Whittier Law School to Allard School of Law at the University of British Columbia (untenured lateral). 

 

*Sahar Aziz (national security law, antidiscrimination law, Middle East law) from Texas A&M University to Rutgers University.

 

*Adam Badawi (contracts, corporate) from Washington University, St. Louis to the University of California, Berkeley.

 

*Shalanda Baker (energy law, international environmental law, administrative law) from the University of Hawaii to Northeastern University.

 

*Angela Banks (immigration law) from the College of William & Mary to Arizona State University.

 

*Natalie Banta (property, trusts & estates, tax) from Valparaiso University to Drake University (untenured lateral).

 

*Richard Bierschbach (criminal law & procedure) from Cardozo Law School/Yeshiva University to Wayne State University (to become Dean).

 

*Binyamin Blum (legal history, evidence, criminal procedure) from Hebrew University, Jerusalem to the University of California Hastings (starting in Spring 2018) (untenured lateral). 

 

*William Boyd (environmental law, energy law) from the University of Colorado, Boulder to the University of California, Los Angeles (effective 2018).

 

*Richard R.W. Brooks (contracts, business organizations, law & economics, law & social norms) from Columbia University to New York University.

 

*Alfred Brophy (legal history, trusts & estates) from the University of North Carolina, Chapel Hill (back after nine years) to the University of Alabama.

 

*Eleanor Brown (property, immigration and migration law, law & development) from George Washington University to Pennsylvania State University, University Park. 

 

*Christopher Bruner (corporate law, securities regulation) from Washington & Lee University to the University of Georgia.

 

*Marcilynn A. Burke (property, land use, natural resources) from the University of Houston to the University of Oregon (to become Dean).

 

*Megan Carpenter (intellectual property) from Texas A&M University to the University of New Hampshire (to become Dean).

 

*Erwin Chemerinsky (constitutional law, civil procedure) from the University of California, Irvine to the University of California, Berkeley (to become Dean).

 

*Nicolas Cornell (contracts, law & philosophy) from the Wharton School at the University of Pennsylvania to the University of Michigan (law) (untenured lateral).

 

*Sharon Davies (criminal law & procedure) from Ohio State University to Spelman College (to become Provost).

 

*Darby Dickerson (higher education law & policy, litigation ethics) from Texas Tech University (where she is currently Dean) to John Marshall Law School, Chicago (to become Dean).

 

*Ben Edwards (corporate law, securities regulation, consumer financial protection) from Barry University to the University of Nevada, Las Vegas (untenured lateral).

 

*Tonya Evans (intellectual property, entertainment law, trusts & estates) from Widener University Commonwealth to the University of New Hampshire.

 

*Catherine Fisk (labor & employment law, intellectual property, legal history, civil rights) from the University of California, Irvine to the University of California, Berkeley.

 

*Victor Flatt (environmental law, energy law) from the University of North Carolina, Chapel Hill (back, after eight years) to the University of Houston.

 

*Sheila Foster (property, land use, environmental law & policy, local government) from Fordham University to Georgetown University (joint with Public Policy).

 

*Eric Franklin (corporate, contracts, economic & community development clinic) from the University of Nevada, Las Vegas to the University of Tennessee, Knoxville (untenured latereal).

 

*Brett Frischmann (intellectual property, Cyberlaw) from Cardozo Law School/Yeshiva University to Villanova University.

 

*David Gamage (tax) from the University of California, Berkeley to Indiana University, Bloomington.

 

*Rachel Godsil (property, civil rights) from Seton Hall University to Rutgers University.

 

*Erica Goldberg (torts, criminal procedure, insurance law) from Ohio Northern University to the University of Dayton (untenured lateral).

 

*Sarah Haan (corporate) from the University of Idaho to Washington & Lee University.

 

*Kevin Haeberle (corporate law, securities regulation) from University of South Carolina to the College of William & Mary (untenured lateral)

 

*Sam Halabi (health law) from the University of Tulsa to the University of Missouri, Columbia.

 

*Woodrow Hartzog (privacy law, media law, Cyberlaw, intellectual property) from Cumberland School of Law, Samford University to Northeastern University.

 

*David Hasen (tax) from the University of Colorado, Boulder to the University of Florida, Gainesville.

 

*Allison Hoffman (health law & policy) from the University of California, Los Angeles to the University of Pennsylvania.

 

*David Hoffman (contracts, law & psychology) from Temple University to the University of Pennsylvania.

 

*Ryan Holte (intellectual property, patents) from Southern Illinois University to the University of Akron.

 

*Herbert Hovenkamp (antitrust, legal history) from the University of Iowa to the University of Pennsylvania.

 

*Nicole Huberfeld (health law, constitutional law) from the University of Kentucky to the School of Public Health, Boston University.

 

*Blake Hudson (environmental law, natural resources, land use) from Louisiana State University to the University of Houston.

 

*Lolita Buckner Inniss (property, legal history) from Cleveland-Marshall College of Law to Southern Methodist University.

 

*Margot Kaminski (law & technology, civil liberties, privacy law) from Ohio State University to University of Colorado, Boulder (untenured lateral).

 

*Orin Kerr (criminal procedure, computer crime law) from George Washington University to the University of Southern California (effective January 2018).

 

*Kurt Lash (constitutional law) from the University of Illinois to the University of Richmond.

 

*Yoon-Ho Alex Lee (securities regulation, corporate, administrative law, antitrust, law & economics, consumer protection law) from the University of Southern California to Northwestern University.

 

*Lyrissa Barnett Lidsky (torts, First Amendment) from the University of Florida to the University of Missouri, Columbia (to become Dean).

 

*Dayna Matthew (health law) from the University of Colorado, Boulder to the University of Virginia.

 

*Pamela Metzger (criminal law & procedure) from Tulane University to Southern Methodist University.

 

*Paul Miller (fiduciary law, private law theory) from McGill University to the University of Notre Dame.

 

*Nicholas A. Mirkay, III (tax) from Creighton University to the University of Hawaii.

 

*Samuel Moyn (legal history, human rights) from Harvard University to Yale University.

 

*Alexandra Natapoff (criminal law & procedure) from Loyola Law School, Los Angeles to University of California, Irvine.

 

*Douglas NeJaime (family law, law & sexuality, constitutional law) from the University of California, Los Angeles to Yale University.

 

*Shu-Yi Oei (tax) from Tulane University to Boston College.

 

*Ruth Okediji (intellectual property, international intellectual property, innovation policy) from the University of Minnesota to Harvard University.

 

*David Orentlicher (health law) from Indiana University, Indianapolis to the University of Nevada, Las Vegas.

 

*Hari M. Osofsky (energy law, climate change, law & science) from the University of Minnesota to Pennsylvania State University, University Park (to become Dean).

 

*Frank Partnoy (corporate, securities) from the University of San Diego to the University of California, Berkeley (effective fall 2018).

 

*Christopher J. (C.J.) Peters (constitutional law, legal theory, civil procedure) from the University of Baltimore to the University of Akron (to become Dean).

 

*Alice Ristroph (criminal law & procedure, constitutional law, political theory) from Seton Hall University to Brooklyn Law School.

 

*Stephen Rushin (criminal law & procedure) from the University of Alabama to Loyola University, Chicago (untenured lateral).

 

*Victoria Sahani (alternative dispute resolution, international arbitration) from Washington & Lee University to Arizona State University.

 

*Michael Hunter Schwartz (legal education & pedagogy) from the University of Arkansas, Little Rock to McGeorge School of Law, University of the Pacific (to become Dean).

 

*Joshua Sellers (election law, constitutional law, legislation, civil procedure) from the University of Oklahoma, Norman to Arizona State University (untenured lateral).

 

*Michael Simkovic (bankruptcy, tax, corporate) from Seton Hall University to the University of Southern California.

 

*Fred Smith, Jr. (constitutiona law, federal courts) from (an untenured position) at the University of California, Berkeley to (a tenured position) at Emory University.

 

*Brad Snyder (civil procedure, constitutional law, legal history) from the University of Wisconsin, Madison to Georgetown University.

 

*Kim Talus (energy law) from the Universities of Helsinki & Eastern Finland to Tulane University.

 

*Matthew Tokson (criminal procedure, cyberlaw, intellectual property) from Northern Kentucky University to the University of Utah (untenured lateral).

 

*Franita Tolson (election law, constitutional law, employment discrimination) from Florida State University to the University of Southern California.

 

*Rebecca Tushnet (intellectual property, First Amendment) from Georgetown University to Harvard University.

 

*Ryan Vacca (intellectual property) from the University of Akron to the University of New Hampshire.

 

*Urska Velikonja (corporate, securities regulation) from Emory University to Georgetown University.

 

*Rose Cuison Villazor (immigration law, equal protection, critical race theory) from the University of California, Davis to Rutgers University (for 2018-19).

 

*Nancy Welsh (dispute resolution) from Pennsylvania State University Dickinson School of Law (Carlysle) to Texas A&M University.

 

*Del Wright, Jr. (tax, corporate) from Valparaiso University to the University of Missouri, Kansas City.

Posted by Brian Leiter on July 31, 2017 in Faculty News | Permalink

July 24, 2017

How unemployment at graduation affects lawyer earnings over time

More factual analysis from McIntyre & Simkovic, forthcoming in Journal of Empirical Legal Studies:

We investigate whether economic conditions at labor market entry predict long-term differences in law graduate earnings. We find that unemployment levels at graduation continue to predict law earnings premiums within 4 years after graduation for earners at the high end and middle of the distribution. However, the relation fades as law graduates gain experience and the difference in lifetime earnings is moderate. This suggests that earnings figures from After the JD II and III -- which track law graduates who passed the bar exam in 2000 -- are likely generalizable to other law cohorts because these studies are outside the window when graduation conditions predict differences in subsequent earnings.

 

Outcomes data available prior to matriculation do not predict unemployment or starting salaries at graduation. Earnings premiums are not predicted by BLS projected job openings.

 

While changes in cohort size predict changes in the percent of law graduates practicing law, we find little evidence that changes in cohort size predict changes in earnings. This suggests that law graduates who switch to other occupations when law cohort sizes increase are not hurt financially by larger cohorts.

 

For medium to high earning graduates, successfully timing law school predicts a higher value of a law degree ex-post, but simulations show that no strategy for ex-ante timing is readily available.

 

Posted by Brian Leiter on July 24, 2017 in Legal Profession, Of Academic Interest | Permalink

July 18, 2017

June LSAT takers up nearly 20% last month compared to 2016

Wow!

Posted by Brian Leiter on July 18, 2017 in Legal Profession, Of Academic Interest | Permalink

Is California’s bar examination minimum passing score anti-competitive? (Michael Simkovic)

Occupational licensing regimes can help markets function when those markets suffer from what Economist George Akerlof coined a “lemons” problem.  In a lemons market, it is too costly or difficult for consumers to distinguish goods or services of acceptable quality from those that are close to worthless or even harmful.  Licensing regimes can help solve this problem by assuring consumers of a minimal baseline level of quality.  Effectively, licensing removes the bottom of the market, increasing quality, consumer confidence, volume, and price.

But economists worry that licensing regimes could be abused.  For example, if members of a licensed occupation were to seize control of licensing, they might set unnecessarily high barriers to entry for their industry, above what is optimal for consumer protection.  This could create an artificial shortage, reduce competition, drive up prices and drive down quality of services.  Political leaders also worry that excessive state or local licensing regimes could deprive workers of valuable economic opportunities and reduce their geographic mobility.

The deans of almost all ABA approved California law schools have jointly expressed concerns that California’s minimum passing score (‘cut score’) on the nationally uniform, multiple choice, Multi-State Bar Exam bar examination is excessively high. 

These leaders of legal education note that California has a higher cut score than any state except Delaware, no justification has been provided for this unusually high cut score, and some parts of California may have a shortage of lawyers.  Moreover, although law graduates from California score better on the MBE than the national average, they are less likely to pass the bar exam because of California’s unusually high cut score.  The case for bringing California’s cut score into line with those of other leading legal jurisdictions such as New York has been most forcefully stated by UC-Hastings Dean David Faigman. 

Amid concerns about possible anti-trust lawsuits against the State Bar, the Supreme Court of California has agreed to supervise the state bar of California and may set a lower bar cut score.

High cut scores are not the only signs of possible anti-competitive protectionism in California. California is among the few states that, without exception, forces experienced attorneys licensed in other states to sit for reexamination prior to relicensing. The overwhelming majority of jurisdictions—including New York, Washington D.C., Illinois, Texas, and Massachusetts—permit experienced lawyers who are licensed in another state to obtain a license to practice law on motion, without the need for reexamination.  (Some impose additional requirements, such as graduation from an ABA-approved law school or reciprocity by the state of origin).

Data from the U.S. Bureau of Labor Statistics, Occupational Employment Statistics[i] shows that California lawyers earn more, on average, than lawyers in any jurisdiction except Washington D.C. 


2016 BLS mean lawyer earnings by state

Top paying States for Lawyers:

State

Employment

Employment per thousand jobs

Location quotient[ii]

Hourly mean wage

Annual mean wage 

District of Columbia

31,470

44.81

10.16

$87.89

$182,810

California

76,840

4.81

1.09

$77.89

$162,010

New York

72,760

8.00

1.81

$77.53

$161,260

Massachusetts

17,440

5.04

1.14

$76.33

$158,760

Delaware

2,590

5.87

1.33

$75.77

$157,610

While this may be great for lawyers, it is not necessarily an unmitigated good.  It means that legal services likely cost clients more and may be less widely available. 

This could be for benign reasons, for example, because California lawyers provide a higher quality of service, or are concentrated in highly profitable areas of practice.  For example, the technology sector might create demand in sophisticated niche practice areas such as patents. 

On the other hand, high average wages could be a sign of barriers to entry and protectionism which restrict access to legal services.  For example, in most states, lawyers are an integral part of residential real estate closings and help advise clients on how to mitigate risks.  However, in California real estate closings are handled almost exclusively by non-lawyer real estate agents.  Real estate agents are compensated only when deals close, and have little incentive to raise red flags for buyers—and indeed, may lack the training to fully understand the risks.  Whereas real estate prices in New York and Boston are relatively steady, in Los Angeles and San Francisco, they are about as volatile as the stock market.

Outside of California, high wage-jurisdictions with sophisticated legal practices, such as New York and Washington D.C., attract a relatively large number of lawyers, as measured by the share of the workforce employed as lawyers and a BLS measure, the location quotient.ii

However, California has a substantially lower concentration of lawyers than these leading jurisdictions, and also trails jurisdictions like Illinois and Florida.  This pattern—persistently high prices of legal services and persistently low relative quantity of lawyers—is consistent with high barriers to entry.[iii]

These data are suggestive, and not conclusive. However, in combination with seemingly protectionist institutional features, they raise serious questions about California’s unusually strict requirements for entry into the legal profession.

Some have attempted to impugn the motives of law school deans, especially those who lead law schools with low bar passage rates.  But critics of the California bar exam cut score include the deans of Stanford, USC, Berkeley, UCLA, and UC-Irvine, whose graduates overwhelmingly pass the California bar examination on the first try. (see also here).  

The strongest substantive defense of a high bar cut-score may come from studies of the Connecticut Bar by Peter Siegelman and colleagues, which found that academic credentials and bar examination performance help predict subsequent discipline of attorneys (here and here). 

But Siegelman and colleagues found that the baseline rate of discipline was so low to begin with that excluding more individuals from the legal profession would provide very limited benefits to clients.  They noted that lawyers at greater risk of passing the bar exam might have greater rates of discipline because they are more likely to work in small or solo practices where discipline is more common.

 

[i] BLS OES data excludes law firm partners and solo practitioners.

[ii] The location quotient is the ratio of the area concentration of occupational employment to the national average concentration. A location quotient greater than one indicates the occupation has a higher share of employment than average, and a location quotient less than one indicates the occupation is less prevalent in the area than average.

[iii] Legal education is notably not a barrier to entry in California, which permits graduates of non-ABA approved law schools or college graduates who have apprenticed with a lawyer but have not completed law school to sit for the bar examination.

 

UPDATE: July 26, 2017.  Derek Muller and Rob Anderson posted a working paper to SSRN that sought to replicate much of Siegelman & colleague's analysis using California data.  Compared to Connecticut California makes less granular data available to researchers, and so Muller and Anderson relied on law school attended as a proxy for bar exam performance.  Although the California results are similar--relatively few lawyers are disciplined in any given year--Muller and Anderson argue that the probability of being disciplined at least once over the course of a 40 year career might still be reasonably high for some lawyers.  This raises the question of whether clients would materially suffer from being served by a lawyer who was disciplined once many years ago or might be disciplined once in the distant future, as opposed to one who was recently in trouble with the bar.  

Posted by Michael Simkovic on July 18, 2017 in Guest Blogger: Michael Simkovic, Legal Profession, Of Academic Interest | Permalink

July 17, 2017

Some corrected data on trends in law school applications and LSAT scores

Here.  The problem is that the Blog Emperor relies too often on unreliable sources like "Law School Transparency" and the hopeless Matt Leichter.

Posted by Brian Leiter on July 17, 2017 in Legal Profession, Of Academic Interest | Permalink

July 7, 2017

In Memoriam: Norman Dorsen (1930-2017) and John A. Robertson (1943-2017)

My former Texas colleague John Dzienkowski kindly called to my attention the recent passing of two well-known figures in the legal academy.

Professor Dorsen was a leading civil liberties advocate and longtime member of the NYU Law faculty.  The New York Times obituary is here.

I was particularly saddened to learn of the death of my former Texas colleague John A. Robertson, a leading figure in law and bioethics.  The Austin-American Statesman obituary is here, and there is a lovely remembrance from Glenn Cohen (Harvard) here.

Posted by Brian Leiter on July 7, 2017 in Memorial Notices | Permalink

July 5, 2017

Wall Street Journal trims legal coverage (Michael Simkovic)

The Wall Street Journal closed several of its blogs on Monday, including its Law Blog.  The WSJ has maintained its blogs with broader readership, such as those about economics and personal finance.  

Posted by Michael Simkovic on July 5, 2017 in Guest Blogger: Michael Simkovic, Legal Profession, Of Academic Interest, Weblogs | Permalink

A law professor's advice for Jeff Bezos

Pay some tax.

Posted by Brian Leiter on July 5, 2017 in Of Academic Interest | Permalink