March 15, 2018

How not to draft a contract

March 14, 2018

"Academic Freedom and the Obligations of University Administrators" especially regarding faculty speech


This talk (sparked by this incident) that I gave at Columbia Law School last fall is now on-line, for those who might be interested.

A different wrinkle on this issue is presented by the new allegations that Prof. Amy Wax (Penn) has disparaged the academic performance of African-American students at her law school.   Here academic freedom affords her no protection:  any identifiable group of students at a school has a right not to be openly disparaged for its competence by faculty or administrators at their institution, and the Administration should both correct the record and would be within rights, in my view, to take disciplinary action against Prof. Wax (I do not think this is an offense justifying termination, but lesser disciplinary steps would be warranted).  Think of it in Pickering terms:  faculty disparagement of some identifiable portion of the student body interferes with the school's core functions, including helping members of the disparaged group find suitable employment upon completion of their education.   (Contrary to the letter from the Penn alumni and students, it is not clear to me that Prof. Wax's statements violate the "anonymous grading policy," if the Penn one is like that at most schools:   exams are marked without knowing the student's identity, but after the grades are turned in, the professor learns how each student performed.  On the other hand, students have a reasonable expectation and entitlement, perhaps even protected by FERPA [I'm less sure about that], not to have their academic performance disclosed to third parties by the faculty member.)

UPDATE:  Is Prof. Wax the Ann Coulter of the legal academy?  Her colleague Tobias Wolff comments.

ANOTHER:  Penn's Dean Ruger has removed Prof. Wax from teaching required 1L classes.  As a punitive measure, that seems rather mild, given the breach of professional obligations involved, but perhaps he is taking other actions as well.   A good line from Dean Ruger's statement:

Our first-year students are just that – students – not faceless data points or research subjects to be conscripted in the service of their professor’s musings about race in society.

March 14, 2018 in Jurisprudence, Of Academic Interest, Professional Advice | Permalink

March 06, 2018

Lewis & Clark law students embarrass themselves... trying to prevent Christina Hoff Sommers from speaking.  There are many things one could say about Dr. Sommers, but she is not, contrary to the students, a "fascist," and she has arguments that one can argue with.  That law students, in particular, should behave this way is appalling.

March 6, 2018 in Of Academic Interest, Student Advice | Permalink

March 02, 2018

Blast from the past: Reflections on McIntyre & Simkovic's "The Economic Value of a Law Degree"

February 28, 2018

Private law school tuition discounting

Blog Emperor Caron has the details.

February 28, 2018 in Legal Profession, Of Academic Interest, Rankings | Permalink

February 14, 2018

Political bias in the selection of law review articles

This finding--by my colleagues Adam Chilton, Jonathan Masur and our Behavioral Law & Economics Fellow Kyle Rozema--is hardly surprising, given how out of their depth most law review editors are in figuring out what to publish.  Maybe law reviews should advertise that year's ideological tilt of its Articles Editors?

February 14, 2018 in Of Academic Interest, Professional Advice | Permalink

February 10, 2018

Limited Liability and the Known Unknown (Taxing Limited Liability) (Michael Simkovic)

Private firms often withhold information or contest scientific knowledge when public revelation could lead to costly regulations or liability.  This concealment leads to negative externalities and public harm. 

But what if private firms’ superior knowledge and self-interest could be harnessed to reveal information about risks and accelerate the implementation of safety regulations?  

In Limited Liability and the Known Unknown, I argue that firms that desire limited liability for their investors should be forced to pay what they believe limited liability is worth.  This would have several salutary effects.  Firms’ choice between unlimited liability and higher taxes would reveal important information about internal risk assessments, reduce public-private information asymmetries, and accelerate the application of scientific knowledge to personal and public health.


Limited liability is a double-edged sword. On the one hand, limited liability may help overcome investors' risk aversion and facilitate capital formation and economic growth. On the other hand, limited liability is widely believed to contribute to excessive risk taking and externalization of losses to the public. The externalization problem can be mitigated imperfectly through existing mechanisms such as regulation, mandatory insurance, and minimum capital requirements. These mechanisms could be more effective if information asymmetries between industry and policymakers could be reduced. Private businesses will typically have better information about industry-specific risks than policymakers.


A charge for limited liability entities-resembling a corporate income tax but calibrated to risk levels-could have two salutary effects. First, a well-calibrated limited liability tax could help compensate the public fisc for risks and reduce externalization. Second, a limited liability tax could force private industry actors to reveal information to policy-makers and regulators, thereby dynamically improving the public response to externalization risk.

Charging firms for limited liability will lead private firms to sort themselves by riskiness and reveal information to policymakers. Policymakers will then be able to focus their attention on the industries that have collectively self-identified as high risk and develop more finely tailored regulatory responses. Because the benefits of making the proper election are fully internalized by individual firms, whereas the costs of future regulation or limited liability tax changes will be borne collectively by industries, firms will be un-likely to strategically mislead policymakers in their elections. By helping to reveal private information and focus regulators' attention, a limited liability tax could accelerate the pace at which policymakers learn and therefore the pace at which regulations improve.

February 10, 2018 in Guest Blogger: Michael Simkovic, Of Academic Interest, Science | Permalink

February 07, 2018

House Republicans propose to open floodgates to federal funding of low-quality for-profit, online degrees (Michael Simkovic)

House Republicans recently proposed to increase federal funding for the worst performing parts of higher education and reduce federal funding for the best performing parts.

For-profit ("proprietary") brick-and-mortar and online educational programs tend to have low rates of student completion, relatively poor employment outcomes, and relatively high student loan default rates compared to private non-profit and public institutions.  For-profits' typically poor outcomes may be at least in part because for-profit programs typically spend far more on sales and marketing than traditional non-profit programs.  This leaves fewer resources available for instruction and support services for students, or research that can help build an institutional reputation and connections with employers.  Paying profits out to investors also drains cash and limits how much can be spent on instruction in any given year.*  Short-term programs at for-profits are the only category of higher educational institution that have been shown by peer reviewed research to increase their prices without increasing educational quality upon gaining eligibility for federal aid.

Default rates of for-profit programs used to be even worse in relative terms, before rules were implemented to deny eligibility for federal student loans to the worst performing for-profit institutions.

A new House bill sponsored exclusively by Republicans, H.R. 4508,** threatens to open the floodgates to federal funding for for-profit and online education of dubious quality.  According to the CBO, the bill would:

"Amend or repeal restrictions on institutional eligibility for federal student aid for certain types of schools, the largest of which would repeal the definition of distance education and eliminate the cap on the percentage of revenues that proprietary schools can receive from the Department of Education. . . .

Distance Education. H.R. 4508 would repeal the current-law requirement that online programs provide students with regular, substantive interaction with faculty. CBO expects that if programs do not need to meet that criterion they could more easily expand and scale up, resulting in higher enrollment. . . .

Short-Term Programs. Current law requires programs to offer at least 600 clock hours of instruction for students to be eligible for Pell grants. To be eligible for student loans, a program must offer at least 300 hours and have a student completion and placement rate of at least 70 percent. . . . H.R. 4508 would extend aid eligibility to students in short-term programs [and] there would no longer be any requirements about placement rates. . . .

Gainful Employment. In October 2014, the Department of Education published final rules related to gainful employment, setting benchmarks related to student income and federal loan debt that had to be met by programs at proprietary institutions...H.R. 4508 would repeal . . . gainful employment [rules]."

Indeed, it will be much easier to expand enrollment without the need to spend any money providing students "regular, substantive interaction with faculty," who can answer student questions, connect them with employers, or teach them.  

Continue reading

February 7, 2018 in Guest Blogger: Michael Simkovic, Legal Profession, Of Academic Interest, Science, Student Advice | Permalink

Northern Illinois Law extends in-state tuition to non-residents

January 30, 2018

How Democracy Dies: A Case Study of Poland

In light of the current interest in the general topic, many readers will find Professor Sadurski's knowledgeable discussion of the situation in Poland illuminating and instructive.

(Thanks to Tomasz Gizbert-Studnicki for calling it to my attention.)

January 30, 2018 in Jurisprudence, Of Academic Interest | Permalink