Thursday, 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.
Wednesday, 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.
Congratulations to my occasional co-blogger here, Daniel Filler, who has been named the new Dean at Drexel. Given his new responsibilities, we agreed it was time for Dan to retire from his occasional posting here, where he had mainly covered memorial notices. In light of that, and in the interest of time, I will revert to my older practice of only posting memorial notices in cases where a law professor was likely to be nationally known.
Congrats again to Prof. Filler!
Tuesday, December 13, 2016
Monday, December 12, 2016
Saturday, 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.
Thursday, December 8, 2016
A video of this wonderful lecture and the Q&A is now available here. The lecture itself begins about seven minutes in, after various introductions. (The Dewey Lecture this year was the day after the election, as it happened, which may explain a few comments and jokes.)
Wednesday, December 7, 2016
MOVING TO FRONT(ORIGINALLY POSTED NOVEMBER 24, 2009--I HAVE UPDATED CERTAIN NUMBERS)
With luck (and luck will help since the academic job market remains tight), some of you seeking law teaching jobs will get offers of tenure-track positions in the next couple of months. What then? Here's roughly what I tell my Texas and Chicago advisees they need to find out, and in the interest of having it written down in one place and for the benefit of others too, here it is (not in order of importance):
1. You will want to get (in writing eventually) the basic salary information, obviously, and the nature of summer research support and the criteria for its award (is it automatic for junior faculty? contingent on prior publication [if so, how much?]? awarded competitively (if so, based on what criteria/process)?). You should also find out how salary raises are determined. Are they, for example, lock-step for junior faculty? Fixed by union contract? (Rutgers faculty, for example, are unionized, a huge advantage and why they are among the best-paid faculty, not just in law, in the country.) Is it a 'merit' system, and if so is it decanal discretion or is their a faculty committee that reviews your teaching and work each year?
2. You should ask for a copy of the school's tenure standards and get clear about the expectations and the timeline. Does any work you have already published count towards meeting the tenure standard?
3. What research leave policy, if any, does the school have? A term off after every three full years of teaching is a very good leave policy; some schools have even better policies, most have less generous leave policies. (If there is a norm, it is a term off after every six years.) Many schools have a special leave policy for junior faculty, designed to give them some time off prior to the tenure decision. Find out if the school has such a policy.
4. One of the most important things to be clear about is not just your teaching load, but what courses you will be teaching precisely. You should ask whether the school can guarantee a stable set of courses until after the tenure decision. Preparing new courses is hugely time-consuming, and you also get better at teaching the course the more times you do it. As a tenure-track faculty member, having a stable package of, say, three courses (plus a seminar) will make a huge difference in terms of your ability to conduct research and write. In my experience, most schools will commit in writing to a set of courses for the tenure-track years (and do ask for this in writing), but some schools either won't or can't. In my view, it's a good reason to prefer one school to another that one will give you the courses you want and promise them that they're yours, while another won't--a consideration that overrides lots of other factors, including salary.
Tuesday, December 6, 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.
Monday, December 5, 2016