June 12, 2018
Most legal employers (who responded so far) deny imposing mandatory arbitration agreements on summer associates/interns
June 11, 2018
Have education advocates sold out students' and educators' privacy for money from technology firms? (Michael Simkovic)
The Department of Education's failures to safeguard student data against leaks have led to repeated Congressional hearings over the last few years. (see here, here, and here). Even some of the best state education agencies have also suffered data breaches.
Privacy advocates, student and parent groups, and educators are therefore understandably concerned about sharing even more detailed and personal student information with government agencies that cannot adequately safeguard the information they already have.
A network of think tanks, advocacy groups, and media organizations with links to technology firms have been pushing for extremely intrusive and detailed collection of information about individual students. Disclosures would no longer be limited to aggregated, anonymized data, but rather would include information about individual students. Extant disclosures have already undermined student privacy far more than was anticipated. Student contact lists are commercially available for purchase on the basis of ethnicity, affluence, religion, lifestyle, awkwardness, and even a perceived or predicted need for family planning services. Disclosure of disciplinary records -- which occurs in spite of legal assurances that such data will remain confidential -- can put students at a disadvantage in the job market for a lifetime. (See also here).1
As one expert on technology explained:
"The bill proposes a new system to collect student-level data . . . . And that's where we all should feel a little queasy. Despite the obvious benefits of having access to data . . . the inherent security and privacy concerns of such a system are significant.
The definition of "data in scope" might change over time. And once the data is collected, there it sits, ready to be leaked, breached or worse. Without getting too deep into Big Brother conspiracy theory, there are so many ways for the system to go wrong."
Tech-backed groups want even more data collection mandated by the federal government. Many of these groups are funded by the Gates Foundation and related groups with links to technology firms.
Technology firms have a tendency to have faith in data-driven solutions to problems. But technology firms would also benefit financially from more onerous reporting obligations because technology firms provide compliance and reporting services to education institutions. Rising technology and compliance costs are among important reasons that higher education has become more expensive.
The American Council on Education (ACE) has stopped defending student privacy against these demands after ACE received grants from the Gates Foundation (including one to promote online education) and after ACE was viciously attacked2 by Gates-funded journalists3 for opposing Gates-backed policies.
The American Association of State Colleges and Universities also received a substantial grant from the Gates Foundation around the time it ceased defending student privacy (see also here). So did the Association of Public and Land-Grant Universities (see also here, here, here, here, here) and the American Association of Community Colleges (here, here, here, here, here). (While there may be innocent explanations, the optics are not great).
One of the few remaining defenders of student privacy is the National Association of Independent Colleges and Universities, which represents private non-for-profit universities. However, even NAICU appears increasingly likely to compromise and give the Gates-backed group much of what it wants.
Technology firms might obtain access to extremely sensitive data through a revolving door between the Gates Foundation, the Department of Education, and Edu-Tech firms. Such data could be advantageous when technology firms negotiate the price of technology servicing contracts or compete with education institutions through online offerings.
One wonders if higher education "lobby groups", rather than educating policymakers about the needs of students and universities, have found it more advantageous to lobby higher education institutions on behalf of technology firms.
June 08, 2018
Apprenticeships and online education are not viable alternatives to ABA-approved law schools (Michael Simkovic)
Over the last several decades, both the cost and the quality of ABA approved law schools have increased. Faculty student ratios have fallen. Completion rates have increased, even as diverse groups with historically lower completion rates have become a larger share of the student body. Earnings premiums have increased, and racial disparities have narrowed.
Nevertheless, some critics of law school, concerned by the high cost, have suggested going back to the "good old days" of legal apprenticeships, or using technology to bring down costs. The data does not support apprenticeships or less highly regulated (and less expensive) online or correspondence versions of law school as viable alternatives to ABA-approved law schools.
Several major legal markets (including New York and California) permit prospective lawyers to sit for the bar exam after 4 years of apprenticeship under a licensed lawyer (or 4 years combined law school and apprenticeship). Very few people still try this approach. But for those who do, the bar passage rates are abysmal.
June 05, 2018
Should law schools pressure their students to go into low paid, thankless public service jobs? (Michael Simkovic)
A recent report by a Harvard law school alumnus, Pete Davis, points out that law schools like Harvard serve the interests of wealthy elites by training primarily future corporate lawyers. (See also here). This is consistent with the available evidence on graduates’ employment, notwithstanding widely publicized—and dubious—claims of law schools being liberal or left-leaning.
Whether or not this is a problem, and whether schools like Harvard should try to do a better job of training future business lawyers or try to steer their students away from business law, is a matter for debate. Davis appears to believe that business lawyers are incapable of serving important collective interests of society—or at least do not do as good of a job as public sector lawyers. According to Davis, law schools therefore have an obligation to discourage students from pursuing careers in business law.
My view is that the path toward resuscitating the public sector will entail convincing the American people to collectively share the burdens of civilization by voting for higher taxes and higher pay for public servants. Until public servants are paid fairly, no one but the very wealthy should feel any obligation to work in the public sector or encourage their students to do so.
I would argue that business lawyers facilitate incredibly important functions in the service of society. Business lawyers help businesses raise the capital they need so that they can serve the basic needs of hundreds of millions or even billions of people. Lawyers also help firms mitigate risks, comply with government regulations and organize tens or even hundreds of thousands employees and suppliers to work together toward a common goal. That is remarkable, and the economic progress that has resulted clearly is in the public interest.
May 28, 2018
Anti-university “free speech” legislation will divert education funds to demagogues and facilitate monitoring, intimidation, and harassment of academic communities (Michael Simkovic)
Part I: After demagogues hijack higher education funding and disrupt learning and research, Berkeley responds
In the wake of disruptions surrounding the invitation to campus of provocative right wing speakers, the University of California at Berkeley recently released the Report of the Chancellor’s Commission on Free Speech. The members of the commission include the Chief of Police and the Law School Dean and constitutional law scholar Erwin Chemerinsky.
The report notes that U.C. Berkeley “spent nearly $4 million—during a time of severe fiscal duress—on security costs for [disruptive speeches by far-right provocateurs in] September 2017 alone. . . . This is not sustainable [given Berkeley’s] $150+ million deficit.”
At current tuition prices, $4 million is the equivalent of more than 280 1-year full-tuition scholarships (or 70 four-year bachelor’s degrees). Given the tone and substance of the talks, it seems unlikely that California taxpayers or the Berkeley community got good value for their money. For example, that money could have been used to train engineers, scientists, and other educated professionals. The report included several sensible recommendations to try to contain costs and limit disruptions.
Unfortunately, many of these recommendations would be difficult—perhaps impossible—to implement if legislation backed by the Koch family, the Goldwater Institute, and some law professors goes into effect. (More on this in Part II below).
Mr. Shapiro is known for comparing “debate” to a “bloodsport.” In “How to Debate a Leftist and Destroy Them,” Shapiro advises conservatives to “Hit first. Hit hard. Hit where it counts . . . convince [the audience] that your opposition is a liar and a hater.” Shapiro advises being even more aggressive when dealing with a liberal family member at family gatherings such as Thanksgiving. Shapiro advises conservatives to call a family member who does not share conservative political views a “jackass,” “ridiculous,” “irrational,” “buffoon,” “loser,” “fascist,” and a would-be baby-killer (for supporting abortion rights). Shaprio’s speech at Berkeley was reportedly similarly “strong on insults . . . and light on [substance].”
The Commission was even less impressed with other speakers:
“Many Commission members are skeptical of [Milo Yiannopoulos and Ann Coulter]’s commitment to anything other than the pursuit of wealth and fame through the instigation of anger, fear, and vengefulness in their hard-right constituency. Speech of this kind is hard to defend, especially in light of the acute distress it caused (and was intended to cause) to staff and students, many of whom felt threatened and targeted by the speakers and by the outside groups financing their appearances.”
The Commission concluded that excessive financial costs were imposed on U.C. Berkeley and the taxpayers of California by “very small groups of students working closely with outside organizations” as “part of a coordinated campaign to organize appearances on American campuses likely to incite a violent reaction, in order to advance a facile narrative that universities are not tolerant of conservative speech.”
The Commission suggested that if the citizens of California are unwilling to pay higher taxes to sponsor events that enrich the likes of Milo Yiannopoulos, then U.C. Berkeley should consider capping the amount it will spend on security for speakers:
“[T]he campus should not have to expend scarce resources to protect celebrity provocateurs seeking to promote their brand (and, in some cases, to cast aspersions on higher education) when so many essential needs go unfunded or underfunded.”
The report also recommends centralizing event planning, limiting disruptive events to locations where individuals who would rather focus on their studies or their work can more easily avoid being affected by them, and encouraging “constructive and thoughtful debate between passionate advocates for opposing points of view” on campus including conservatives, rather than “shock jock performance art.”
Part II: Anti-university “free speech” legislation will divert funds to demagogues and will facilitate monitoring, intimidation, and harassment of academic communities
The so-called “Campus Free Speech Act” prohibits universities from charging more for security for events that are likely to incite violence and that lack substance. The Goldwater legislation requires universities to host any speaker, regardless of intellectual rigor or academic merit (even if quality standards are applied in a non-partisan manner), as long as a single student, student group, or faculty member has invited the speaker. It denies universities control over which space is made available to which speakers. The Goldwater Legislation places burdens on public universities that its most ardent supporters would never place on businesses which own other platforms for speech such as newspapers or venues for conferences such as hotels. There is a difference between protecting the academic freedom of highly-trained and carefully vetted faculty and transforming universities into dumping grounds for outside speakers of low-quality and high-cost.
While universities would be denied editorial discretion, student groups could be as discriminatory or exclusionary as they please without losing any privileges. Thus, a neo-Nazi student group could refuse to admit blacks, Jews, gays, Catholics, liberals, moderates, or conservatives who don’t subscribe to White Supremacy—or even those who do but refuse to march around wearing Swastikas—without losing any privileges, such as the right to bring speakers or host a rally on campus.
May 26, 2018
Extremely conservative Stanford graduate complains that there aren’t enough extreme conservatives on campus (Michael Simkovic)
Few would consider Stanford University left-wing.
Stanford University hosts the controversial, conservative Hoover Institution. Stanford has raised more than $40 million from conservative donors. Stanford is a major military contractor. Stanford’s last acting president (and long-time provost) argued for affirmative action in hiring in favor of conservative faculty, deploying barely coded, neo-McCarthyist phrases like “the threat from within” to describe liberals on campus. One very prominent Hoover Institution faculty member took the suggestion to heart, asking students affiliated with the College Republicans and Turning Point USA (which maintains "watchlists" of liberal faculty) to help him dig up dirt on a 20 year old Stanford student who the Professor thought was too liberal. (The Professor wanted help "grinding [leftists] down" and wished to "intimidate them.") (See also here, here, here, and here).
Some conservatives want more.
A recent Stanford law graduate and self-described “hard man,” Martin J. Salvucci, writing in the National Review, recently compared Stanford to Czechoslovakia under Soviet domination. Czechoslovakia was invaded by 650,000 heavily armed soldiers from the Soviet Union and other Warsaw pact states in 1968 when Czechoslovakia sought to become Social Democratic rather than Communist (i.e., leftist, but not authoritarian).
The Stanford graduate—who recently worked at Skadden and Klee Tuchin—explains that from his perspective, attending Stanford entailed a level of suffering just like living in a totalitarian satellite state, except that he has “nicer stuff.”
The problem, apparently, is that there are not enough committed right wing ideologues on campus:
"An almost unspoken agreement seems to exist among many students that all of us will soon be fabulously successful, so long as everyone remains a “team player” and nobody rocks the boat too earnestly. Political, moral, and religious convictions are, for the most part, accessories best deployed for instrumental purposes, rather than values to be espoused or explored for their own sake."
If this description is accurate, then it sounds like Stanford law students are well prepared for the restraint and decorum that will be expected of them at the elite law firms, banks, and corporations where many of them aspire to work.
The recent graduate also complains that the Dean of Stanford, M. Elizabeth Magill, has not endorsed his view that there should be an increase in official efforts to promote conservative views on campus. Because of this, he accuses her of being a “gutless bureaucrat.”
Mr. Salvucci’s views highlight that ideology is a matter of perspective. For those who are sufficiently extreme, even a conservative, corporate institution in Silicon Valley, like Stanford, can seem as oppressive as life under Soviet rule.
Given the timing of Mr. Salvucci’s post—after graduation but before admission to the bar—Mr. Salvucci may be attempting to set up a test case to challenge California’s Bar’s character and fitness requirement, which mandates “fairness . . . and respect . . .”
I doubt that the bar will take the bait.
But Mr. Salvucci’s classmates and colleagues may enjoy ribbing him about this for years to come.
 Hoover is a think tank which selects and funds its research fellows based on their ideology and political experience. This is routine in the think tank world, but is widely condemned within academic institutions, which are supposed to select scholars based solely on the merits, regardless of politics.
 The Stanford professor rationalizes these activities by arguing that he was concerned about efforts to schedule counter-programming to compete with controversial political scientist Charles Murray's talk, which resulted in the talk being lightly attended. He goes on to argue that he was defending "free speech"--which to him apparently means shielding conservative speakers from competition for students' attention.
UPDATED 7/2/2018 to include Hoover faculty member Niall Ferguson's efforts to dig up opposition research on liberal students.
May 26, 2018 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Humor, Legal Profession, Ludicrous Hyperbole Watch, Of Academic Interest, Professional Advice, Student Advice, Weblogs | Permalink
May 18, 2018
I recently wrote about the evolution of economics--and law & economics--from fields that focused on assumptions and priors to fields that emphasizes data, causal inference, and scientific objectivity. Many law professors and aspiring academics share my enthusiasm for Albert Einstein's vision of universities as “Temples of Science”, but are unsure of how to acquire or sharpen the technical skills that will make them effective empiricists.
Bernard Black at Northwestern runs extremely helpful and practical summer workshops that I highly recommend. The quality of Professor Black's workshops easily justifies the cost. (There are free law & economics workshops--and some that will even pay you a stipend to attend--but from what I have seen, these tend to present non-empirical methods and political view points).
Details about Professor Black's workshop are available below the break.
May 14, 2018
- Universities face serious threats to academic freedom from outside pressure groups
- Some Donors have made demands that can undermine university provision of unbiased, high-quality research
- Accommodating ethically questionable Donor demands can undermine public confidence not only in individual researchers, but in entire institutions and even in the broader academic enterprise
- Stronger, more secure, and more stable funding for universities—without strings attached—would help insulate universities from undue pressure by outside groups
- Universities should work together to secure their financial and intellectual independence, articulate clear ethical standards, and enforce those standards
I recently documented efforts by a well-organized network of libertarian and conservative academics, advocacy groups, and media organizations to foster resentment toward universities and then gain control over them, under the pretense of supporting free speech. These efforts continue a decades-long assault on higher education, and have been remarkably effective at tarnishing universities’ reputations. This has paved the way for legislation that further undermines universities’ intellectual and financial independence.
A complementary threat to academic integrity comes from powerful outsiders exploiting universities’ financial needs to leverage relatively small donations into enduring influence over faculty, curriculum and student life. Such money-for-influence arrangements could alter what research gets produced, and by whom.
Outside funding can increase research output and impact in media and policy circles. It can fund great research that might not have been produced otherwise. But funding under inappropriate terms risks undermining the central and unique role that universities play in society as providers of high quality, reliable, and unbiased information. This could quickly destroy the goodwill and trust that universities painstakingly cultivated over decades (in some cases, for centuries).
This issue has come to a head recently with press coverage of some financial relationships and recently disclosed contracts between conservative and libertarian donors (including foundations and re-granting organizations funded by the prominent Koch family) and George Mason University. Much of the controversy relates to a libertarian / free-market embedded think tank at George Mason, The Mercatus Center, which provides supplemental compensation and resources to GMU’s economics faculty and some law faculty members, as well as opportunities to produce commissioned research on timely policy issues. Through Mercatus, the university has received tens of millions of dollars in donations.
GMU faculty members’ chances of obtaining funding and resources apparently did not depend exclusively on an unbiased assessment of their intellectual rigor and academic contributions, but rather appear to have depended at least in part on the political implications of their research. In contravention of academic ethical norms, donors had substantial influence over which faculty members would receive compensation supplements known as “chairs” or “professorships.” Donors maintained control through representation on selection committees, evaluation committees, rights to recommend removal of chair holders, gift rescission rights, and key-man clauses for senior executives, including the dean of the law school.
“The objective of the Professorship is to advance the . . . acceptance and practice of . . . free market processes and principles [as] promot[ing] individual freedom, opportunity, and prosperity . . . The occupant of the Professorship (“Professor”) shall . . . be qualified and committed to the forgoing principles.”
Rudy Fichtenbaum, president of the American Association of University Professors said “When you start getting into a study of free enterprise then you’re really, I think, stepping into a territory where you’re promoting a political agenda.” Donors may specify a topic of study or type of expertise for a holder of a chair; but they should not specify the chair-holder’s politics.
Critics say Mercatus’s ideologically based funding tips the playing field at GMU in favor of the production of economically right-wing scholarship and the retention of economically right-wing scholars and instructors. Neither Mercatus nor GMU appear to have imposed any limits on the fraction of a faculty member’s total annual compensation that could come from non-state sources such as Mercatus. This is unusual—many funders and universities worry that too much outside funding creates the appearance of impropriety. At least one prominent member of the GMU faculty with a Mercatus affiliation derived over 40 percent of his compensation in 2016 from “non-state” sources, according to public records.
Without supplemental compensation from Mercatus, GMU faculty compensation appears to be uncompetitive with comparable institutions. Thus, working at GMU may not have made sense financially for economists or law professors who were unlikely to obtain Mercatus compensation supplements—i.e., those whose scholarship might support increases in taxes, an expansion of public investment or social insurance, or more stringent regulations of business. At least one moderate economics faculty member says that she “carefully chose [her] research so it wouldn’t be objectionable” to her more conservative colleagues.
April 30, 2018
A well-organized campaign to bait, discredit, and take over universities is exploiting students and manipulating the public (Michael Simkovic)
- Many lectures about “free speech” are not really about “free speech,” but rather are intended to provoke a reaction that will discredit universities.
- When such reactions occur, many news stories about them are created, shaped, and disseminated by a well-funded network that wants to transform and take over universities.
- Students, professors, administrators should not take the bait; nor should journalists.
After a violent attack on civil rights protestors that left three dead and more than a dozen injured at the University of Virginia, students and administrators at Vassar became concerned when they learned that William Jacobson was coming to defend racism. Jacobson’s libertarian hosts advertised his lecture as “‘Hate Speech’ is Free Speech, Even After Charlottesville.” Jacobson’s previous racially charged comments and dubious assertions earned Jacobson the admiration of White-nationalist websites such as V-Dare (see also here), the John Birch Society’s New American, and Breitbart news.
But Jacobson’s much-hyped lecture turned out to be a superficial and innocuous discussion of free speech, at the level of a high school civics class. Jacobson’s prosaic lecture was not news worthy. Instead, the press focused on student and university officials’ purported over-reactions to a talk about “free speech.”
Similar stories abound. Recently, the Federalist Society invited Josh Blackman, a tenured professor at South Texas College of Law Houston’s, to lecture at CUNY law school. Professor Blackman’s sparsely attended lecture drew protestors because of Blackman’s previous criticism of an amnesty program for undocumented immigrants and his use of language the protestors interpreted as racial dog whistling.
A university official asked the students to be respectful, defended Blackman’s right to speak, and admonished the students “please don’t take the bait.” One student noticed Blackman recording himself and asked Blackman, “You chose CUNY didn't you? Because you knew what would happen if you came here." (CUNY, like Vassar, has a reputation for left-wing student activism). Blackman deflected the question. One protestor used an expletive, which Blackman repeated.
According to both Blackman and CUNY, the protestors were non-violent. Security was present to maintain order. Blackman—tall and muscular—towered over the students and appeared calm throughout the exchange.
Right-wing journalists hyped up the incident, labelling the largely minority protestors a “mob” and “hoodlums.” A law professor writing for the Volokh Conspiracy blog at Reason Magazine argued that the CUNY Dean should be fired. White Nationalist websites such as Breitbart, New American (the John Birch Society), and VDare lionized Blackman as a hero. Blackman seized the opportunities that resulted, scoring an Op Ed in the New York Daily News.
Professor Blackman’s claim that student protestors at CUNY denied him a platform is ironic. It is precisely because of Blackman’s right-wing connections and the brief protests they engendered that Blackman was given a platform at the National Review, Fox News, the New York Post, the New York Daily News, Reason, Inside Higher Ed, FIRE, Campus Reform, Cato.org, Commentary, First Amendment Watch, The College Fix, and The Global Dispatch, SeeThruEdu (The Texas Public Policy Foundation) among others. Many of these organizations are part of the Koch Brothers’ backed State Policy Network.
The purpose of media exaggeration of incidents at universities appears to be to discredit universities in the eyes of conservatives, libertarians, and moderates.
April 10, 2018
Jake Brooks in NY Times: Direct Federal Student Lending Should Provide Insurance to Students and Public Investment in Education (Michael Simkovic)
John Brooks of Georgetown's excellent Op Ed is available here.
Brooks calls to task some of the questionable and alarmist narratives that have been coming out of nominally liberal think tanks (which are funded by foundations linked to the private student loan industry and purveyors of ed-tech of dubious value), noting that Direct Lending, IBR and debt forgiveness can benefit both students and taxpayers. He also notes the dangers of the new PROSPER act and graciously linked to Friday's post about how small the direct budgetary impact of student loans is when viewed in context.
Brooks notes that some Democrats have been advancing a traditionally Republican privatization agenda. Jeff Sachs has similarly taken Obama and Clinton to task for underinvestment in basic and essential public services and infrastructure, noting that by the numbers they invest only marginally more than Republicans. Brooks argues that because of IBR, Obama deserves more credit, and that this important legacy of his presidency should be preserved.