May 19, 2015
A curious sign of the times: Charleston Law students, acting as "creditors," seek to put school into receivership
May 14, 2015
According to a faculty member, the Law School ran nearly a five million dollar deficit this year, and the Dean has pledged to cut $2.1 million of that next year, with a combination of moves: the elimination of all sabbaticals, all research stipends, a 5% salary cut for senior staff, and a 10% salary cut for all faculty. To make matters worse, the Dean, according to one source, "forbade anyone from speaking to the press about this. The materials he passed out carried two watermarks, one large across the text, and another secret one (or so he said), with each faculty member's name so he will know who the leak is, he said." Since everyone familiar with legal education knows that many law schools are struggling with financial problems, it's mysterious (and counter-productive) for a Dean to make such a threat.
Pace faculty are concerned that there has been no attempt to buy out faculty (as other schools have done) and fear a further salary cut is in the offing before long. The elimination of sabbaticals also has a number of Pace faculty perplexed, since with a reduction in its class size, Pace has excess teaching capacity, so it's not like sabbaticals require hiring adjuncts or visitors, so they do not add to costs.
UPDATE: Prof. Alexander Greenawalt (Pace) writes:
I have not polled my peers but I believe that most of my colleagues would agree that there are serious inaccuracies in the report you received. Of course I’m not thrilled to have my salary cut, but the truth is that we are part of a university that is continuing to support us, and I still have a great job at a great law school. The main thrust of the dean’s remarks was that he is implementing budget cuts that will reduce our deficit without compromising the quality of the education we provide our students. On that score, I believe he succeeded. We are not the first law school to experience a faculty salary cut, and I don’t think this is a sign that we are a sinking ship.
As to the specific allegations, the document in question is an internal memorandum written by my some of my faculty colleagues identifying possible budget cuts, several of which have not been adopted. I think it’s obvious that any law school would treat this as a confidential document. I doubt that my colleagues who authored it wanted it made public, and I think the dean would have been well within his rights to limit our access to it, for example by making it available for review only in hard copy in the dean’s suite. Instead he decided to distribute individual copies, while taking measures to discourage (without prohibiting) public disclosure. I haven’t picked up my copy yet, so I can’t tell you what it looks like or what watermarks it might have. Perhaps he should have handled this distribution differently, but my honest belief is that he was acting out of a desire to be transparent rather than punitive.
In particular, I want to emphasize that there were no threats of any kind. David did not forbid communications with the press, and indeed when asked about this he was quite clear that we were free to do what we wanted. He did ask that we not leak the document to the press, and I think that’s a reasonable request. Certainly, he did not specify any consequences if we did.
Regarding sabbaticals, David [the Dean] was clear that they will still be available for important scholarly projects.
I can’t speak for my anonymous faculty colleague, and certainly I am not accusing that person of dishonesty, but obviously we have very different recollections!
I thank Prof. Greenawalt for contacting me about this. My source stands by the original account. I think some of these issues may be matters of interpretation. I do not think Pace is a "sinking ship" at all; it has an unusually strong faculty for a regional law school, and, as I noted originally, is facing the same issues that most American law schools are now facing.
May 13, 2015
May 12, 2015
In the Wall Street Journal, Professor Adam Levitin of Georgetown argues yes for private student loans and no for federal student loans, since the latter have debt forgiveness options already built in. More discussion at credit slips. Those interested in student loan issues may also enjoy Risk Based Student Loans, Philip Schrag's work on Income Based Repayment (here and here), or Rafael Pardo's work on undue hardship discharge, and a related empirical study by Jason Iuliano. Jake Brooks also has an interesting new article coming out on student loan debt forgiveness as a pseudo-income-tax for funding higher education.
The classic argument against discharge of student loans in bankruptcy is Thomas Jackson in the first edition of The Logic and Limits of Bankruptcy Law. Jackson wrote:
As a general rule, college and graduate students have few current assets but large future income streams. Using bankruptcy is relatively painless to them, as they have few assets to lose, and obtaining a discharge offers a substantial benefit, as it frees up the future income stream from the substantial obligation of repaying a student loan.
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.
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 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?
- Does the answer depend on whether the outcome of the competition is driven by luck, skill, or effort?
- Does the answer depend on how large the differences in rewards are between winners and losers?
3) Does disclosure alter student decision-making?
- If so, how?
- Is this a good thing or a bad thing?
- If it is a good thing do the benefits of disclosure outweigh the costs of providing disclosure?
- 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
May 07, 2015
May 05, 2015
A better grading system
Professor Merritt argues that mandatory grading curves can be unfair when one class has stronger students than another. I agree.
Statistician Valen Johnson—whom I cite in my last post as an authority on grade inflation— has developed a clever solution to this problem which involves adjusting grading curves within each class based on the ability levels of the students. A Johnson-inspired proposal was nearly adopted at Duke University in the late 1990s, but was blocked by departments that offered higher grades and attracted weaker students.
Most law schools try to balance their sections in term of student ability levels and overall quality of faculty. Nevertheless, anomalies like a “smart section” (as Professor Merritt calls it) may occasionally occur. Johnson’s proposal would be an excellent solution to this problem.
Professor Merritt asserts that there is some sort of problem with the market for lawyers and law graduates that makes competition and inequality uniquely bad in the context of law. These assertions are implausible given the low barriers to entry for both law schools and lawyers, aggressive competition between law schools for students and between lawyers for clients, and widespread inequality outside of law school and legal practice. Some form of regulation is the norm in many areas of employment and in many industries, and a licensing regime for lawyers and an accreditation system for law schools do not in any way make these occupations and institutions unique or unusual. According to a recent study, nearly a third of U.S. workers are licensed, licensing is more common as education and skill levels increase, and licensing does not affect inequality among the licensed.
As a general matter, deregulated market competition and greater inequality are a package deal. Inequality can be reduced through regulation, taxation, and politicization of compensation through unionization or growth of public sector employment.
Professor Merritt’s critiques follow the standard playbook of law school critics—take something about law schools that is widespread and common out of context, claim that it is somehow unique to law schools when it is neither unique nor unusual, and then demonize it.
Jeremy Telman responds.
In her latest post, Deborah Merritt maintains that scholarships conditioned on maintaining a minimum GPA or class ranking are troubling when used by law schools, even though such conditions are routinely used by other educational institutions and state government programs.
According to Professor Merritt, the problem is that the mandatory curve in law school is such that not all students can keep their conditional scholarships. But Professor Merritt presents no evidence that conditional scholarships retention rates are any higher for undergraduate or government programs than for law schools. She infers nefarious motives on the part of law schools based only on the fact that law schools require students to compete for scholarship funds that are in limited supply.
Perhaps Professor Merritt believes that competition for scarce and valuable resources is inherently immoral. She does not explain why this is so or whether these views apply outside the context of law school scholarships. If only one out of ten associates hired at a law firm will make partner and earn $1 million per year, is it inherently immoral to ask associates to work hard and compete for the opportunity? If only one actor will be selected for a part, is it immoral to ask more than one actor to try out? Is any competition for promotions, clients, or recognition immoral? If so, we are living in a wicked, wicked world.
Perhaps Professor Merritt believes it is inherently immoral to limit “A” grades to students whose academic performance is superior to most of their peers, since an “A” is simply a data point and can be replicated and distributed to everyone at zero marginal cost. But liberally handing out “A” grades is costly for students and employers. Labor economics studies suggest that grade inflation is associated with reduced effort by students and reduced learning. Educators are not doing students or employers favors if they allow high grades to become a birthright rather than a marker of distinction that must be earned through hard work and exceptional performance.
Statistician Valen Johnson and others have argued that many perverse incentives in undergraduate education could be ameliorated if mandatory grading curves were imposed across majors and grade inflation and grade shopping were stamped out. If certain undergraduate majors have succumbed to the pressure to inflate grades in order to keep student-customers happy, that is quite troubling. Employers will likely distrust grades from such programs, question how much students have learned, and harbor suspicions about the work ethic of students who would opt into programs known for awarding easy “A’s” for minimal effort. Programs that have resisted the pressure to inflate grades and maintained more rigorous academic standards are more likely to retain the confidence of employers and to teach students knowledge and skills that are valued in the labor market. Indeed, grades are notoriously lower in STEM fields than in the humanities, even though STEM majors spend more time studying and have higher standardized test scores.
Professor Merritt suggests that law students do not require any incentives to work harder, since they are all already studying at full capacity. Some students presumably are, but there are many law students who can and should focus more on their studies. A roll call in most classes will reveal students whose attendance is well below 100 percent—so much so that the ABA now requires law schools to enforce minimum class attendance policies. When students do attend class, a visit to the back of a classroom and a glance at computer screens will reveal some students who are not giving their undivided attention. Cold calling will reveal students who have not done the required reading—although they do appear to be well informed about the latest sports and celebrity news. Some students have family or employment obligations that understandably limit the amount of time they can devote to their studies. But in the evening, while some student who are less constrained are studying, a stroll past the local bar will reveal others who are spending their time on less academic pursuits.
Shortly after graduation, some students who did not show up for class enough, did not pay attention enough, did not prepare for class enough, did not review after class enough, and did not seek out their professors when they were confused will find that they have not passed the bar exam and will not be permitted to practice law until they learn how to work hard and study. Others will find, rather less dramatically, that what they did not work hard enough to learn in law school could have made them more valuable to their employers.
Law schools can observe LSAT scores and undergraduate GPAs, but they cannot directly observe students’ work ethic and drive to succeed. Just as law students want to attend the best law schools, law schools want to educate the best students who have the motivation to become leaders in law, business, and government.
Given the goal of attracting and retaining the best students, rewarding motivation and ability seems like a reasonable policy. Anecdotes notwithstanding, the evidence suggests that most college and law students understand the terms of conditional scholarships well.