December 19, 2016
December 15, 2016
Professor Seto (Loyola/Los Angeles) asked me to share the following analysis of the ABA's new proposed bar passs standard:
There is a serious mathematical problem with the ABA’s 75% proposal.
Assume for illustration’s sake that bar results are normally distributed – that is, that they will cluster around the mean in a normal distribution. (There is no reason to believe that deviations from a normal distribution affect the analysis given below.)
In a state in which only one school provides the bulk of bar-takers, the bulk of that the state’s normal distribution will be reflected in the school’s bar passage rate. Assuming that the state bar passage mean is reasonably high, the school will always meet the ABA’s requirement, regardless of the quality of the education it provides.
In a state with multiple law schools, however, the normal distribution of bar results will instead be distributed unevenly across those schools. Some schools’ results will incorporate the lower end of that normal distribution. If there are enough schools in the state and students are sorted by bar-taker aptitude across those schools, the bottom schools will always fail the ABA’s requirement, again regardless of the quality of the education they provide.
Note that the difference between the two results – always meeting and always failing – is not because students are being admitted who shouldn’t be. If, in the state with multiple law schools, all such schools were to merge into one single mega-school, without any change in admissions policies or educational quality, that mega-school would absorb the bulk of the normal distribution in bar passage and would always meet the ABA’s requirement.
What this means is that the ABA’s proposal should chiefly impact lower-ranked schools in large states – not because the quality of the educations they provide or because they are admitting students who should not be lawyers, but because of the mathematics of normal distributions. To the extent those lower-ranked schools disproportionately service students from underserved communities, the ABA’s proposal will disproportionately impact diversity in the legal profession. And again, this is not because schools are admitting students who shouldn’t be admitted. It follows from the failure of the ABA to take the mathematics of normal distributions into account in structuring its proposed standard.
Conversely, the ABA’s proposal should have no significant impact on schools in states with few schools – again regardless of the quality of the educations they provide or the students they admit. And again, this follows from its failure to take into account the mathematics of normal distributions.
I question whether a rule that it likely to have a dramatically different impact in different parts of the United States for reasons having nothing to do with the rule’s ostensible purpose should be adopted. It is likely that the ABA is seriously considering the proposal in its current form in part because lawyers are, for the most part, innumerate. Unfortunately, this reinforces the argument that the ABA should not have regulatory jurisdiction over law school accreditation – precisely the argument the proposal is intended to rebut.
Comments are open for those who have ideas about how to address this difficulty. Post your comment only once, it may take awhile to appear.
December 14, 2016
Republican Tax Plan likely to cause "an explosive rise in federal debt" according to Centrist former Treasury Secretary Lawrence Summers (Michael Simkovic)
Former Secretary of the Treasury Lawrence Summers recently warned that President Elect Donald Trump's proposed tax reform plan "will massively favor the top 1 per cent of income earners, threaten an explosive rise in federal debt, complicate the tax code and do little if anything to spur growth."
Summers served as Secretary of the Treasury during the Clinton Administration, during one of the few periods in the last 4 decades when the Federal Government ran a surplus budget. Summers is a Professor of Economics at Harvard University, served as the President of Harvard University, was the Chief Economist of the World Bank, was the Director of the National Economic Council, and was a managing partner at hedge fund D.E. Shaw.
Summers is widely regarded as data-driven, rigorous, and centrist (Summers has complained about "absurd political correctness" in academe and his potential nomination as Chairman of the Federal Reserve was opposed by Progressive Democrats).
"Unfortunately, neither the Trump plan, nor the one put forward by Paul Ryan, speaker of the House of Representatives, provides for nearly enough base-broadening to finance all the high-end tax cutting they include.
Steven Mnuchin, Treasury secretary-designate, asserts there will be no absolute tax cut for the upper class because deductions would be scaled back. The rub is that totally eliminating all deductions for those with incomes over $1m would not even raise enough revenue to cover reducing their marginal tax rates from 39 to 33 per cent, let alone offset their benefit from huge rate reductions on business and corporate income, and the elimination of estate and gift taxes.
Estimates of the Trump plan suggest that it will raise the average after-tax income of the 0.9 per cent of the population with incomes over $1m by 14 per cent, or more than $215,000. This contrasts with proposed tax cuts for those in the middle of the income distribution of $1,000, or about 2 per cent.
The repeal of estate and gift taxes is especially problematic because it would provide a window for the very rich to use gift and trust structures to ensure that their wealth passes without tax not just to their children but to their grandchildren and great grandchildren, regardless of subsequent legislation. . . .
The envisioned Trump tax cut is about the same size relative to the economy as the 1981 Reagan tax cut. It is worth remembering that Reagan, hardly a fan of reversing course or raising taxes, found it necessary to propose significant tax increases in 1982 and 1984 (the equivalent in today’s economy of $3.5tn over a decade) due to concerns about federal debt.
December 13, 2016
December 10, 2016
From their various data sources, two tidbits: LSAT takers in September were up 1% compared to last year, while applicants were down about 5% in December compared to last year. The trend has been towards more applications later in the season, so I expect in the end this year will not be much different than last year in overall volume. We still do not have the December figure for test-takers.
December 06, 2016
My former Texas colleague Mark Lemley (now at Stanford) kindly gave me permission to share this little story he posted on Facebook:
I have an article with the (admittedly extremely boring) title "Rethinking Assignor Estoppel" coming out in the Houston Law Review. It has been on SSRN for nine months. I have posted about it twice on Facebook and Twitter, and it has shown up in all the SSRN journals. In that nine months it has garnered 982 views and 172 SSRN downloads.
Late Friday afternoon, prompted by some friends teasing me for the boring headline, I posted the exact same article, with the exact same abstract, but with a new, click-baity title: Inventor Sued for Infringing His Own Patent. You Won't Believe What Happened Next. I did this in part as a joke, and in part as an unscientific test to see how susceptible law professors were to clickbait.
The answer is, quite susceptible indeed. In less than two hours on a Friday night the number of views for this "new" article surpassed the old one. In 26 hours, by late Saturday, more people had downloaded the new article than the old one, even though before downloading you are exposed to the same old boring abstract. And by the end of the weekend, the article had been viewed nearly six times as often as the original and downloaded three times as often as the original.
The article will soon appear in the Houston Law Review under its old, boring title. But it sure looks like titles matter.
This will remind long-time readers of the late Christopher Fairman's article "Fuck," an even bigger download sensation (see here, here, and here). Of course, a download surge due to a "clickbait" title doesn't necessarily mean additional actual readers.
December 05, 2016
Does state law mandating that the winner-take-all in the electoral college violate the Equal Protection Clause?
December 01, 2016
U.S. LLM Programs Probably Benefit International Students (Part 2): Students who return home (Michael Simkovic)
In part 1 of this 2 part post, I noted that U.S. LLM programs may provide substantial financial benefits to students who remain in the United States, even if they do not necessarily pass a U.S. bar exam. But what about the LLM graduates who return to their countries of origin?
While good data is hard to come by, it is easy to imagine how studying U.S. law might benefit lawyers working outside of the United States and hard to imagine how international programs could continue to attract applicants if returning lawyers did not speak favorably of their studies abroad. Indeed, some countries explicitly encourage students to study abroad and return home. U.S. higher educational institutions often have far better resources than those available in international students’ countries of origin.
Many efforts to “harmonize” and “modernize” corporate, commercial, and regulatory law have historically been efforts to adopt a more U.S.-like approach. For example, the Uniform Commercial Code is greatly admired and appreciated by international bankers and lawyers who have grappled with other countries’ fragmented and inconsistent approaches to secured credit. The U.S. Bankruptcy code is thought to be more conducive to entrepreneurship and consumer finance than the approach in many foreign jurisdictions. Many securities are issued under U.S. law. Many international transactions explicitly choose New York law. U.S. anti-trust law can extend to companies based outside of the United States. U.S. tax law helps drive many international transactions.
Derek Muller recently noted evidence suggesting lower first-time bar passage rates for international students taking the bar exam compared to graduates of ABA approved 3-year JD programs. Although his headline is provocative, Muller is careful to avoid overstating the significance of this finding. Lower bar passage rates are expected, considering that for many LLMs, English is a second language, while for most ABA-approved-JD graduates, English is a first language. On the bar exam, LLMs compete without accommodation on a timed exam with a large essay component with students who either speak English as a first language or have had many more years to immerse themselves in the English language. It can take years for immigrants to become roughly substitutable for U.S.-born workers.
But as noted in my previous post, from a consumer protection perspective, the relevant comparison is not U.S.-born-citizens versus immigrants or foreigners. It’s immigrants or foreigners with more U.S. education versus immigrants or foreigners with less U.S. education.
1-year degrees appear to provide benefits. It seems likely that a 3-year degree would provide international students even more benefits than a 1-year degree. But a 3-year degree would also cost more and take more time to complete, and might be unappealing to those planning to return home.
The U.S. has a history of using English-literacy tests to exclude immigrants from Southern and Eastern Europe while permitting immigration from Northern Europe. Today, historians generally view these policies as discriminatory. It would be unfortunate if the ABA were to take a parallel approach today to deny access to U.S. legal education to lawyers from non-common-law countries on ill-considered consumer protection grounds. Many of those international students intend to return home rather than practice law in the United States. Some of those international students may face even lower odds of passing the bar exam in their countries of origin than in the United States, language barriers notwithstanding.
November 30, 2016
It seems clear the prosecutors expect either her or Garcia, the accused hitman, to cooperate, so that they can indict some of the Adelsons as well. Meanwhile, I wonder what patients of the Adelsons' dental practice think? I think I would have switched dentists some time back in this sordid affair.