December 14, 2015

Media Law Scholars Discuss The New York Times and Defamation Law (Michael Simkovic)

A recent New York Times editorial attacking law school as “a scam” was widely criticized because of its exaggerations and factual inaccuracies (here and here). The dean of Florida Coastal, which The New York Times specifically targeted for opprobrium, wrote  “the Times is saying something demonstrably false and which had not been properly fact checked. . . . [T]he Times could have had [accurate information] if it had simply asked. . . the Times . . . misled its readership by failing to properly fact check.”

Felix Salmon, contemplating recent journalistic controversies, argues that fundamental problems with journalistic methods lead errors to go undetected and unchallenged. According to Salmon, the risk is particularly high when errors originate with a powerful newspaper like The New York Times.   Glenn Greenwald similarly notes the alarming pervasiveness of factual errors by respected media organizations, and how consumers rarely spot these errors  unless they personally have intimate knowledge of the subject of the article—for example because they are the subject. A large survey found that news sources rarely correct errors because they believe that journalists ignore serious mistakes. Sources also fear that if they push for a correction, the media will retaliate.

To better understand the press’s incentives to carefully research their stories, I asked leading media law scholars to discuss whether The New York Times law school editorial raised any legal issues. According to both my Seton Hall colleague Thomas Healy and Howard Wasserman of Florida International, The New York Times has little reason to fear liability, even if it negligently supplies information that is poorly researched, misleading, or harmful.

Howard M. Wasserman, Professor of Law, FIU College of Law

Facts, Damn Facts, and Statistics (full analysis):

Neither Florida Coastal School of Law nor its owner, InfiLaw, has threatened to sue The Times for defamation over its October 24 op-ed. Any such lawsuit would be futile in the face of stringent First Amendment protections against defamation liability. . . . 

Continue reading


December 14, 2015 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Of Academic Interest, Weblogs | Permalink

December 07, 2015

Has there really been an IRS scandal going on for nearly three years?

Blog Emperor Caron appears to think so, though I'm a bit skeptical about his motives:  since the "Instapundit" blog run by the right-wing Tennessee law professor Glenn Reynolds links to each day's posting about the alleged "scandal," the Blog Emperor has another incentive to keep this "hits" cow going!  But what do readers think?  We'll settle this scientifically:

UPDATE: Prior to the invasion of the Insta-ignorance readers, the normal intelligent readership was 30% in favor of the scandal-mongering, the rest against with about one quarter deeming the Blog Emperor's continued coverage the real scandal.


December 7, 2015 in Law in Cyberspace, Legal Humor, Ludicrous Hyperbole Watch, Of Academic Interest | Permalink

December 02, 2015

Developer of Law School Admission Test (LSAT) Disputes Advocacy Group's Bar Exam Claims (Michael Simkovic)

The Law School Admission Council (LSAC)--the non-profit organization which develops and administers the Law School Admission Test (LSAT)--recently issued a press release disputing claims by the advocacy group "Law School Transparency" about the relationship between LSAT scores and bar passage rates.  "Law School Transparency," headed by Kyle McEntee, prominently cited the LSAC National Longitudinal Bar Passage Study (1998) as a key source for "Law School Transparency's" claims that many law schools are admitting students who are unlikely to pass the bar exam based largely on their LSAT scores.  McEntee's group's claims of bar passage risk were widely disseminated by the national press.

However, according to LSAC, the Longitudinal Bar Passage Study does not provide much support for "Law School Transparency's" claims.  Moreover, "Law School Transparency's" focus on first time bar passage rates is potentially misleading:

"The LSAC [National Longitudinal Bar Passage] study did state that 'from the perspective of entry to the profession, the eventual pass rate is a far more important outcome than first-time pass rate.' This statement is as true today as it was 25 years ago. As noted by LST, the LSAC study participants who scored below the (then) average LSAT score had an eventual bar passage rate of over 90 percent.

Kyle McEntee and David Frakt responded to some of LSAC's critiques--partly on substance by pointing out disclaimers in the full version of "Law School Transparency's" claims, partly by smearing the technical experts at LSAC as shills for law school--but notably did not explain why "Law School Transparency" chose to focus on first time bar passage rates rather than seemingly more important--and much higher--eventual bar passage rates. 

Eventual bar passage rates were the focus of the National Longitudinal Bar Passage Study.  The LSAC study's executive summary highlights eventual bar passage rates and detailed data is presented on page 32 and 33.  Even among graduates of the lowest "cluster" of law schools, around 80 percent eventually passed the bar exam.

According to LSAC:

"The LSAC National Longitudinal Bar Passage Study was undertaken primarily in response to rumors and anecdotal reports suggesting that bar passage rates were so low among examinees of color that potential applicants were questioning the wisdom of investing the time and resources necessary to obtain a legal education."

"Law School Transparency" has revived similar concerns, but without a specific focus on racial minorities.*

There may be legitimate concerns about long term eventual bar passage rates for some law students.  However, "Law School Transparency's" back-of-the-envelope effort, focused on short term outcomes, does not provide much insight into long-term questions.  The most rigorous study of this issue to date--the LSAC National Longitudinal Bar Passage Study--concluded that "A demographic profile that could distinguish first-time passing examinees from eventual-passing or never-passing examinees did not emerge from these data. . . . Although students of color entered law school with academic credentials, as measured by UGPA and LSAT scores, that were significantly lower than those of white students, their eventual bar passage rates justified admission practices that look beyond those measures."

Unfortunately, some newspapers reported "Law School Transparency's" bar passage risk claims in ways that suggested the claims were blessed by LSAC, or even originated from LSAC.  For example, one prominent newspaper's editorial board wrote that "In 2013, the median LSAT score of students admitted to [one law school] was in the bottom quarter of all test-takers nationwide. According to the test’s administrators, students with scores this low are unlikely to ever pass the bar exam."
 
Journalists should not have uncritically reported (or exaggerated) "Law School Transparency's" claims without consulting experts at LSAC, and certainly should not have attributed those claims to LSAC.
 
 
* Many law schools that serve students with low LSAT scores have racially diverse classes. Thus, denying admission to students with low LSAT scores could  affect racial minorities as well as other students.


December 2, 2015 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Of Academic Interest, Science, Web/Tech, Weblogs | Permalink

November 12, 2015

New America Foundation versus College (Michael Simkovic)

In the Los Angeles Review of Books, Frank Pasquale reviews "The End of College" by Kevin Carey of the New America Foundation:

"Tax-cutting, budget-slashing politicos are always eager to hear that education could be much, much cheaper. . . . “disrupting education” mobilizes investors and excites startups. Kevin Carey’s The End of College is the latest book to seize the imagination of disrupters. It touts massive changes for post-secondary education. . . .

 

[Carey] believes things need to change drastically in higher ed, and that they will change. But bridging the gap between “is” and “ought” is a formidable task — one Carey tries to solve by muckraking indictments of universities on the one hand and encomia to tech firms on the other. . . .  In The End of College, Silicon Valley thought leaders are as pragmatic, nimble, and public-spirited as university administrators are doctrinaire, ossified, and avaricious. . . . They’ve devised methods of teaching and evaluating students that solve (or will soon solve — Carey vacillates here) all the old problems of distance education.

 

Online learning at the University of Everywhere could eventually improve outcomes — or degenerate into an uncanny hybrid of Black Mirror and Minority Report. Big data surveillance will track the work students do, ostensibly in order to customize learning. . . . Want to prove you aren’t faking exams? Just let cameras record your every move and keystroke — perhaps your eye movements and facial expressions, too. . . . Certainly we can trust Silicon Valley to respect our privacy and do nothing untoward with the data! . . . 

 

Silicon Valley has even lured universities into giving away lectures for free. The colleges think they’re establishing good karma with the public, but disrupters hope for a more chaotic endgame: students deciding to watch free courses, then proving their credentials to certifiers who give out “badges” to signify competence in a skill set. . . . It could be a very profitable business. As students pay less for actual instruction by experts, they have more money to spend on badges. . . . 

 

Carey implies that faculty opposition to MOOCs is simply a matter of self-interest. His concerns about greed, so prominent when he discusses universities, fade away when he rhapsodizes about ed tech’s “disruptive innovators.” . . . One of Carey’s heroes . . . had a no-bid contract to MOOCify San Jose State University math instruction, only to see the partnership pause after “no more than 51 percent of Udacity students passed any of the three courses” (while “74 percent or more of the students in traditional classes passed”). . . .

 

Traditional college education endures — and even those who dismiss it rarely, if ever, try to dissuade their own children from attending a university. If colleges were really so terrible at preparing the workforce, the college earnings premium would have disappeared long ago. . . . [E]mployers are unlikely to subscribe to Carey’s [alternatives to college].

 

So why bother reading Carey? Because, like Donald Trump blustering his way to the top of the Republican field by popping off shocking sentences, Carey’s rhetoric has political heft. To the extent it gains traction among education policy staffers (and the student loan companies that love to hire them), it changes the debate. The End of College is a master class in translating an elite project of privatization and austerity into bite-sized populist insults, even as it sings the praises of powerful corporations.

 

Carey claims he wants dramatically better educational opportunities for all. But that goal will require more public support . . .  Many millionaires and billionaires want to see their taxes go down . . . Before touting D.C. researchers’ “findings” and “big idea books,” the media and indeed all of us should look closely at exactly what interests are funding the think tanks behind them."


November 12, 2015 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Of Academic Interest, Web/Tech, Weblogs | Permalink

November 11, 2015

Sleazy lawyer Marc Randazza gets caught

A number of law professors have been sharing the news on Facebook.   Randazza first emerged on my radar screen as the lawyer defending Anthony Ciolli of Autoadmit notoriety, and later represented the slimy gossip blog, Above the Law.   He always struck me as a bit creepy, but he's got bigger troubles now.  A strange but not wholly surprising ending.  (Randazza is challenging the arbitration decision in Nevada courts, so we'll see if there isn't another chapter.)


November 11, 2015 in Law in Cyberspace, Legal Profession, Of Academic Interest | Permalink

September 30, 2015

NYLS to start a pro bono clinic for victims of cyberharassment

August 27, 2015

Case in Point (Michael Simkovic)

I recently posted about the need for law schools to fund the AALS so that it can become a resource for journalists and encourage more accurate and balanced press coverage.  I noted how unrepresentative and disconnected from reality the press coverage has been, and that individual law professors and deans who have pointed this out have faced ad hominem attacks and other abuse, which has had a chilling effect on speech.

The online gossip blog Above the Law has been kind enough to illustrate my point by responding with a series of misrepresentations and ad hominem attacks.  They’ve misrepresented my calls for provision of honest and accurate information as an invitation to lying and propaganda (and included a Pinocchio cartoon in cased anyone missed their headline) and somehow managed to dredge up completely irrelevant and salacious allegations against a former Dean, who I mentioned in my post only because of the attacks he and his law school faced immediately after his 2012 New York Times editorial.

I believe that law schools should provide accurate information to the public in an efficient way.  There is nothing unethical about this view and no reason to keep it secret, which is why I have openly posted these views on a blog that anyone and everyone in the world can read. 

ATL has done a terrible job in terms of accuracy and balance in their reporting—repeatedly misrepresenting (here and here) my and Frank McIntyre’s peer-reviewed research on The Economic Value of a Law Degree —and the way in which they’ve depicted well intentioned efforts to correct the record is yet another example of biased reporting, anti-law school vitriol, and of the need for active efforts to correct the record and provide greater balance.


August 27, 2015 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Of Academic Interest, Weblogs | Permalink

August 24, 2015

Law Schools’ Four Billion Dollar Collective Action Problem (Michael Simkovic)

Earlier this month, I charted the overwhelmingly negative press coverage of law schools and the legal profession over the last 5 years and discussed the disconnect between the news slant and economic reality.  To the extent that news coverage dissuaded individuals from attending law school for financial reasons, or caused them to delay attending law school, newspapers will on average have cost each prospective law students tens of thousands, or even hundreds of thousands of dollars. The total economic harm across all prospective law students could easily be in the low billions of dollars.*

What can we learn from this?

Continue reading


August 24, 2015 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Of Academic Interest, Weblogs | Permalink

May 12, 2015

Law students are more likely than college students to retain competitive scholarships (Michael Simkovic)

Critics of competitive scholarships tied to GPA or class rank claim that these scholarships are especially troubling when used by law schools, because the mandatory grading curve means that more law students are likely to lose their scholarships than undergraduates.  However, as I noted in my last post, the data actually shows that law students are more likely to retain their competitive scholarships than are undergraduates.

Nevertheless, the newspapers have provided balanced coverage of competitive scholarships for undergraduate institutions  while lambasting law schools for the same practice. 

The remaining critiques of competitive scholarships are not strong.  According to one critique, if competitive scholarships are disproportionately used by law schools who admit students with low LSAT scores and GPA and are not used by the elite law schools, this suggests something suspicious about these scholarships.  Lower ranked law schools serve different student populations with spottier academic preparation who are at greater risk of failing the bar exam and may have worse study habits.  Some policies and practices that are helpful to motivate this population and encourage greater study effort may not be necessary for higher ranked law schools, whose students are already highly motivated and can pass the bar exam and learn challenging material without much effort. 

Another argument is that after law school critics and The New York Times attacked law school competitive scholarships, and the ABA responded by requiring disclosure of this practice, the number of law schools using competitive scholarships declined.  Critics claim that the disclosure caused law schools to stop using competitive scholarships, thereby proving the scholarships were unethical all along. 

But perhaps law schools were simply attempting to avoid criticism, whether merited or not.  In other words, perhaps the criticism caused both the mandatory disclosure and the reduction in the use of competitive scholarships.  If The New York Times quoted an impressive sounding source claiming that those who typically tie their left shoe before their right were liars and thieves, and the Justice Department disclosed an annual list of everyone who tied their left shoe first, we might find that the percent of people who tie their left shoe first would drop, notwithstanding the fact that which shoe you tie first has absolutely nothing to do with ethics.  Or, as Matt Bruckner suggests, perhaps some other factor, such as changes in relative market power or law school budgets help explain the shift in financial aid policy and neither the criticism nor the disclosure had much to do with it.  Without more sophisticated methods of causal inference, its premature to make strong causal claims. 


May 12, 2015 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Of Academic Interest, Student Advice, Weblogs | Permalink

May 10, 2015

Competitive Scholarships, Mandatory Courses, and the Costs and Benefits of Disclosure (Michael Simkovic)

There is a wide range of views about the benefits, costs, and appropriate use of conditional merit scholarships—scholarships that under their terms, will only be retained after the first year of law school if students maintain a minimum GPA or minimum class rank (if there is a mandatory grading curve, a minimum GPA effectively is a class rank requirement).  These questions implicate both broad value judgments and also very specific empirical questions to which we many not have clear answers.  

1)   Is competition for grades a help or a hindrance to learning?

2)   Is competition, with greater rewards for winners than for losers, inherently moral or immoral?

  1. Does the answer depend on whether the outcome of the competition is driven by luck, skill, or effort?
  2. Does the answer depend on how large the differences in rewards are between winners and losers?

3)   Does disclosure alter student decision-making?  

  1. If so, how? 
  2. Is this a good thing or a bad thing?
  3. If it is a good thing do the benefits of disclosure outweigh the costs of providing disclosure?
  4. Are some ways of providing disclosure clearer and more meaningful than others?  Could too much disclosure be overwhelming?

Disclosures are sometimes very effective at improving market efficiency.  Sometimes disclosures appear to have no effect.  Sometimes they have the opposite of the intended or expected effect.  For example, disclosure of compensation of high level corporate executives of publicly traded companies may have contributed to an increase in executive pay (see also here.) 

In the case of conditional merit scholarships, the direct administrative costs of providing disclosure appear minimal.  The effects of such disclosure, if any, remain unknown.  I support access to greater information about conditional scholarship retention rates, not only for law schools but also for all educational institutions. 

Scholarship retention rates at many undergraduate institutions under government-backed programs appear to be lower than scholarship retention rates at most law schools.  Around half of Georgia Hope Scholarship recipients lost their scholarship after the first year.  Around 25 to 30 percent of Georgia Hope Scholarship recipients retained their scholarships for all four years of college.  Nevertheless, conditional merit scholarships can have positive effects on undergraduate enrollment  and academic performance.  A fascinating randomized experiment by Angrist, Lang and Oreopolous found that financial incentives improved grades for women but not for men.  A recent experiment also found evidence that merit scholarships tied to grades can increase student effort and academic performance at community colleges.

Unfortunately, there is some evidence that the use of merit scholarships tied to GPA by undergraduate institutions—where grade distributions and course workload vary widely by major—can reduce the likelihood that students complete their studies in science technology engineering and math (STEM) fields.  Students who major in STEM fields have a higher chance of losing their scholarships 

In other words, if students can shop for “easy As” rather than study harder to improve their performance, they can reduce their own future earning prospects.  The approach law schools take—merit scholarships tied to mandatory grading curves and a required curriculum—may be better for students in the long run.  Indeed, law students might benefit financially if additional courses, such as instruction in financial literacy, were mandatory.*

Greater disclosure of grading distributions may exacerbate grade shopping and grade inflation, which can undermine student effort and learning.  Some models suggest that grade inflation is contagious across institutions (see also here).  (It should be possible to disclose scholarship retention rates without disclosing grade distributions).

In some contexts, such as securities regulation or pharmaceuticals, disclosure requirements tend to be high.  In other areas, such as employment contracts, disclosure tends to be more limited.  We may not always get the balance right.  These questions have lead to a rich research literature in law, economics, and psychology (see Bainbridge, Lang, Mathios, Coffee, Kaplow, Easterbrook and Fischel, Romano, and Schwartz).  In all cases, whether and how disclosures alter behavior is an empirical question.  How the benefits compare to the costs are empirical questions mixed with subjective value judgments.

Given the current limited state of knowledge, and good faith and understandable disagreements about subjective value differences, strident views on one side or another, and moral condemnations of those entertaining different viewpoints, are not appropriate.  

Law professors have an obligation to teach students to think like lawyers, weigh evidence, and consider different arguments and different perspectives.  We should not shut down discussion with swaggering declarations of the moral superiority of our own views or ad-hominem attacks against those with whom we disagree.

A recent post (in the comments) by Brian Tamanaha (or someone posting under his name and with a similar rhetorical style**) highlights the unfortunate tendency by some toward moral posturing.  Tamanaha writes:

           
“[Those who condemn conditional scholarships are] speaking up for the integrity of legal academia. It is embarrassing that law professors would now rise up to defend employment reporting standards … criticized by outsiders (see New York Times "Bait and Switch" piece), practices which have since been repudiated and reformed by new ABA standards. I do not understand why Simkovic is re-raising these resolved issues, but it does not help us regain our collective credibility.

After reading these posts, I have begun to wonder whether a sense of professional responsibility is what separates the two sides in this discussion. It is not a coincidence that John Steele, [Bernard Burk], and others who strongly condemn these practices have taught legal ethics.” 

In other words, if you question Brian Tamanaha’s reasoning and conclusions—as I have—then you have no integrity and dubious ethics, are irresponsible and unprofessional, and are an embarrassment to the legal academy.

Bernard Burk, though declaring his disdain for ad-hominem attacks, accuses those with whom he disagrees of being “partisan.” He compares competition for grades and scholarships to physically beating students.  Burk compares law schools to gangsters and evil witches.  He claims that the positive effects of conditional scholarships on student motivation and learning “smells of post-hoc rationalization.”  (Most of the labor economics studies demonstrating positive effects of financial incentives on student performance were available before The New York Times and the law school critics targeted law school conditional scholarships; the critics overlooked the peer-reviewed literature).

Deborah Merritt, though generally providing an intelligent discussion of conditional scholarship issues, compares conditional scholarships in which adults who lose the competition for grades receive a free year of law school to the fictional “Hunger Games” in which children who lose a physical struggle are murdered.  (Paul Caron repeats this unfortunate comparison when summarizing the debate; so does Bernard Burk).

Paul Campos compares those who disagree with him about data disclosure standards to “Holocaust deniers.”

Law school critics have not persisted through the force of argument or evidence, but rather through their ability to make an honest discussion of the issues so unpleasant that very few who disagree with them wish to engage.  We should thank Professor Telman for his courage and for elevating the conversation from polemics to evidence-based inquiry.  As more professors and journalists raise substantive questions about law school critics’ narrative, it will become increasingly difficult for the critics to foreclose factual and ethical inquiry through ad-hominem attacks and hyperbole.

 

* A recent survey by John Coates, Jessie Fried, and Kathryn Spier at Harvard suggests that large law firm employers believe instruction in certain technically challenging business electives, especially accounting, corporate finance, and corporations, is particularly valuable on the job.  Data does not exist to evaluate whether enrollment in such courses actually boosts earnings or employment, or is even correlated with greater earnings or employment.  However, one working hypothesis is that such courses might be the law school equivalent of undergraduate STEM or economics majors.  A study of high school financial literacy mandates suggests positive long-term effects on enrollees’ financial well-being.  

** The first and only time I met Brian Tamanaha in person was at the 2013 Law & Society meeting in Boston where he spoke on a panel.  Professor Tamanaha shut down questions from the audience about whether his presentation of law school data was misleading by insisting that in our hearts surely we all knew he was right and that any question about whether he was wrong on the facts, and any attempt to rely on data rather than emotionally charged anecdotes, was a sign of flawed moral character. 


May 10, 2015 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Ludicrous Hyperbole Watch, Of Academic Interest, Professional Advice, Science, Student Advice, Web/Tech, Weblogs | Permalink