Brian Leiter's Law School Reports

On filling out the FAR form, Part I

One of the key parts of the FAR form are the two columns (left and right) for subject areas the candidate is interested in.  The left column is far and away the more important:  these are the five primary areas of teaching and research interest, though not all five have to be areas of research interest.  You must list five, and any of these five are fair game for teaching questions at interviews:  what casebook do you like and why?  which parts of the subject do you view as essential to teach (which do you ignore or give less time to)?  and so on.  It is customary, though not essential, to include one core 1L subject in the list (e.g., torts, contracts, criminal law, civil procedure, property); a candidate specializing in all areas of tax and corporate already covers so many essential classes, that are always in demand, that having a 1L class in the left column won't matter.  The right column is courses that one would be willing to teach if asked; you don't need to be prepared to answer detailed teaching questions about these.

In the ideal case, the courses in the left column fit together as some kind of intelligible package:  intelligible with regard to their connections to each and/or your scholarship and/or your experience.  Someone whose left column includes tax, land use, federal courts, and criminal law will have a lot of explaining to do!   Public law and private law clusters are common:  e.g., administrative law, legislation, environmental law, constitutional law, federal courts (public); or contracts, business associations, secured transactions, corporate finance (private); or torts, insurance, products liability (private).   Criminal law, for FAR purposes, has several categories, ranging from substantive to procedure as well as the "criminal justice system," which is suitable for those doing, e.g., empirical work on various aspects of the criminal justice system.

The order of courses in the left column doesn't matter much, so don't waste time over-strategizing:  be who you are actually are, and not someone else.  I recall a candidate several years ago who was advised by folks elsewhere not to list professional responsibility first, even though that was clearly the candidate's main area of research.  That was foolish advice, which we corrected!  And the candidate did quite well, as schools really do hire in PR.  But don't list a 1L course first unless it's really your main area of research and teaching interest!

Signed comments from faculty with hiring experience welcome:  full name and valid e-mail address (the latter will not appear); post the comment only once, it may take awhile to appear.  (I can not answer questions from job seekers here.)

Middle Tennessee State University enters negotiations to acquire Valparaiso's law school

An announcement from MTSU here.  MTSU is located in the Nashville metropolitan area, and is the second biggest public university campus in the state.

The continuing University subsidy of the U of Minnesota Law School

This story is certainly indicative of the depths of the decline in law school applicants especially in the Midwest.  That the flagship law school, long one of the top twenty in the United States, should still be facing these difficulties is sobering.  And, of course, since USNews.com runs American legal education, the school faces a stark choice:  lower admissions standards (and scholarship offers) to take more paying students with lesser numerical credentials, and the school's USNews.com rank will drop; if the school's USNews.com rank drops, some number of out-of-state students who might have paid to go there, won't, and the cycle will continue.  Some clever state AG needs to find a way to take Bob Morse & co. to court for consumer fraud, and end this misery for everyone.

UPDATE:  There's a comment from Bill McGeveran over at the Blog Emperor's post about this story that deserves notice:

First, of the 11 public law schools in the top 30, the only ones to get a lower percentage of their revenue from state support are Berkeley, Michigan, and Virginia -- all with endowments 2 to 4 times larger than ours. The so-called "subsidy" is actually bringing us into line with our peers.

Second, our applicant numbers, yield, and class size have all increased significantly for the entering classes of 2017 and 2018, without any sacrifice in the credentials of our incoming students.

All law schools need to be conscious of costs today, and we're no exception. But there's no dire crisis at Minnesota, even if that's a less interesting news story.

Kozinski on Reinhardt...

...at Concurring Opinions.

Most legal employers (who responded so far) deny imposing mandatory arbitration agreements on summer associates/interns

The data so far.

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.  

Although intrusive data collection has been ostensibly justified as a source of valuable information to students, recent DOE-backed increases in higher education data disclosures have thus far attracted very little interest from students (see also here).

If additional data collection were actually a cost-effective approach to improving student outcomes, it seems likely that higher education institutions would be voluntarily collecting and analyzing such data already. Higher education institutions operate in an intensely competitive market.  Thousands of institutions compete for students and aggressively cut their prices through scholarships.  Most of the surplus generated by education goes to students and the government (as tax collector), not to education institutions.  To try to remain competitive, education institutions routinely seek advice from competent consultants with relevant expertise.

Technology firms may be seeking to use the government to force educators' hands because technology firms' arguments about the benefits of additional data collection are not persuasive to those who best understand the industry.

In addition, driving up traditional educational institutions' costs and reducing the gulf in student privacy protection between brick-and-mortar and online education could help make online offerings more attractive, to the benefit of the technology companies that produce and market online education.  There have recently been many allegations of disturbing student privacy violations by purveyors of online and for-profit education.  (See here, here, here, here, here and here). 

Now that the Department of Education has found that Edu-Tech companies' cannot cause students to waive privacy protections through terms of service, tech companies are apparently seeking to weaken those privacy protections through legislation.

 

[1] Explicit disclosure of disciplinary records and health information would be prohibited by the current version of the CTA, but it may very well be possible to make highly accurate inferences about discipline or health problems from information that could be disclosed, such as non-completed courses and breaks from education. Political or religious affiliation also could not be directly disclosed, but could likely be inferred from other information such as course enrollments and student organization memberships. In addition, future legislation may be even less protective of privacy.  A small toe hold of student-level data collection could expand to much more comprehensive and intrusive data collection.  The amount and type of data collected could be changed at the discretion of the Department of Education without further Congressional action.  Powerful appointed positions within the DOE under both Presidents Obama and Trump have been held by individuals with links to Edu-Tech, online, and for-Profit education companies.

[2]  For additional attacks by Gates-funded journalists and pundits on ACE, see also here, here, here, here.  For a remarkable claim by a Gates grantee (covered by another Gates Grantee) that Mr. Gates is up against a powerful higher education lobby, see here.  Mr. Gates and his foundation can outspend ACE a hundred times over with a fraction of the annual returns on his portfolio of investments.

[3] For a few examples of Gates funding journalists and think tanks responsible for attacks above see also

• Hechinger Report: here, here, here, here and here;
• Center for American Progress: here, here, and here.
• American Enterprise Institute: here, here, here, and here.
• Washington Monthly: here
• PBS: here.
• Education Writers Association: here.

There are many more examples of Gates funding for media organizations, think tanks, and advocacy groups that have advanced his policy agenda and business interests.

 

See also:

Rhea Kelly, The Risk — and Value — of College Transparency, Campus Technology, 5/23/17

As Congress proposes a new postsecondary data reporting framework to help calculate the worth of higher education, security and privacy issues loom.

Parent Coalition for Student Privacy, Nov. 14, 2016

"We cannot overstate the threat to student privacy that would be posed by the development of such a database, including breach, malicious attack, or use of student [data] for purposes not initially intended. Ever since a federal student unit-record system was first proposed . . . the reasons against creating it have only become more persuasive in recent years.

First, we are gravely concerned about the high probability of breaches and unauthorized access to the data. . . .[S]ecurity incidents involving breaches of personal information held by federal agencies rose from 10,481 in 2009 to 27,624 in 2014 – an increase of 164 percent over five years -- for a total of 144,439 reported instances. [T]hese events can “adversely affect national security; [and] damage public health and safety” . . .' Personnel records of about 22.1 million people had been maliciously hacked by foreign interests -- not only federal employees and contractors but also their families and friends, including highly sensitive information gathered for the purposes of security clearance.

The US Department of Education has been found to have especially weak security standards in its collection and storage of student information . . . This puts at risk the huge amount of data that the agency already holds, including student loan information involving information on more than 100 million individuals and at least 39 million unique Social Security numbers. A reported by the audit, staff in the IG office hacked into the Department’s main IT system and gained unfettered access to personal data without anyone noticing. Overall, the audit found significant weaknesses in four out of the five security categories.  In May 2016, the government scorecard created to assess how well federal agencies were implementing data security measures awarded the Education Department an overall grade of D.

Second, K-12 student data currently collected by state departments of education in statewide longitudinal data systems (SLDS) that would potentially be shared with the federal database . . . include upwards of 700 specific personal data elements, including students’ immigrant status, disabilities, disciplinary incidents, and homelessness status. Data collected ostensibly for the sole purpose of research but without the individual’s consent or knowledge would likely be merged with other federal agency data sets, to follow students into the workplace and beyond, and could include data from their military service, tax returns, criminal and health records.

If this granular level of sensitive information were available in a universal U.S. student record database, it could quickly become a go-to repository for purposes that should never be allowed.

A real-life example of the potential misuse of a system of this nature has just been reported in England. . . . [T]he names and home addresses of thousands of students in the NPD have been requested by police and the Home Office for various purposes . . . including to curb “abuse of immigration control.”  A group of parents, teachers, and human rights campaigners has launched a national boycott to urge parents and schools to withhold their children’s country of birth and nationality, data which is being collected at national level for the first time.

Finally, we are very concerned about recent revelations of the widespread surveillance on ordinary citizens by the federal government, and the way in which a national unit-record system could be used to expand tracking of students. While data holds promise to solve complex problems and may be used to improve our nation’s policies, we have a responsibility to our nation’s citizens to protect the privacy of their most personal information, especially that of vulnerable children." 

 

Congratulations to the University of Chicago Law School Class of 2018!

It's been a pleasure and a privilege to teach such talented young men and women, and I am sure I speak for all of my colleagues in wishing you much professional success and personal happiness in the years ahead!  You will be missed!

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.

 

California permits online and correspondence schools, as well as other low cost and more lightly regulated models.  Completion rates are low and bar passage rates are once again extremely low.   The results are substantially the same within race (i.e., the results are not driven by racial differences in those who select different types of preparation for the bar).

In New York, the 4-year qualification (apprenticeship) approach has similarly produced disappointing results.  Only in small, remote markets which struggle to attract enough working age people, such as Vermont, are there any signs of even modest success for apprenticeships.  It seems doubtful that this model could be replicated in competitive legal markets like New York of California.

UPDATE June 11, 2018: 

Several readers have asked good questions in response to this post, specifically:

1) How should the lower tuition cost of online programs or non-ABA approved law schools be factored into the analysis to allow for tradeoffs between cost and quality? and

2) Could differences in student populations account for differences in outcomes?

 

1) Cost vs. Quality

Cost should be taken into account, but tuition may be a lower cost than the opportunity cost of forgoing a higher quality education for one of lower quality.  Ideally, one would compare similar students who either pursued an ABA-approved degree, an online degree, or an apprenticeship and compare their subsequent lifetime earnings regardless of whether they completed their program of study or passed the bar exam. The present value of the difference in lifetime earnings would then be compared to the present value of the difference in tuition.  The average law degree costs around $100,000 in tuition (net of scholarships) and yields an average benefit of $1,000,000.  Costs may be higher toward the low end, and the benefits are likely lower as well, but the net present value is still likely in the hundreds of thousands of dollars.  It is unclear if programs of study with very low completion rates--remember, many people drop out of online programs or non-ABA approved programs or apprenticeships even before they sit for the bar--could provide more value than this in expectation on average.  

2) Differences in Students vs. Differences in Education Quality

It is possible, and indeed likely, that there are differences between the various groups in initial capabilities. The data that is available from California provides a breakdown by race, but not more detailed information such as standardized test scores or parental SES or indicators of motivation.  Differences by race do not explain the differences in outcomes, but of course there are differences in important characteristics within race.

However, I think the data is sufficient to place the burden of proof on those advocating apprenticeships or online education. Someone who can line up an apprenticeship might be better connected than someone who cannot—without data we do not know. Some low ranked ABA-approved law schools serve students with low standardized test scores and who may come from less educated families. It is unclear how different these students are from those who pursue other paths.

To take the example of California, there are quite a few ABA-approved law schools with students whose observable credentials (GPA / LSAT) are not particularly high but which have much higher pass rates than online programs or apprenticeships.

If there are other differences that explain the difference in outcomes besides educational quality, I think it’s up to advocates of online programs and apprenticeships to demonstrate this.

Law firms increase starting salary for associates to $190K

Details here.

Should law schools pressure their students to go into low-paid 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.

Lawyers simultaneously help investors who need to save for important life goals like buying a home, paying for their children’s’ education, or retiring without depending on relatives for assistance. By helping create financial instruments, lawyers make funding for these life goals more secure, and not solely beholden to political winds that can lead to cuts to public pensions, housing, or education. 

The public sector can serve an important role—combatting pollution and other externalities, limiting potential abuses and inefficiencies from information asymmetries, softening the ravages of poverty, reducing the extreme differences in power and resources that can result from market processes and become self-perpetuating, and fostering public investment. And the public sector may well be under-resourced and under-staffed in the United States, which has one of the proportionately smallest public sectors of any developed economy (especially when one excludes the military).

But the public sector is small, and public servants are paid relatively poorly, for a simple reason—because Americans repeatedly demand and repeatedly vote for low taxes. Public sector jobs are passed over by too many people who are hard working and highly capable because the American political system has made those jobs unattractive and unrewarding. (There are of course some hardworking and capable people in the public sector—but for the most part private sector employers can afford to poach whomever they want; see here, here, here, here, here, and here for examples).

Harvard cannot magically convince the U.S. electorate that a public defender who helps lighten punishment for petty criminals from poor backgrounds deserves to be paid as much as a corporate lawyer who helps arrange multibillion-dollar loans so that businesses that provide life saving medicines can expand their operations.

Indeed, the legal profession struggles even to convince the electorate that lawyers who work for financial regulators and try to protect investors deserve to be paid something roughly equivalent to their counterparts in the private sector that they seek to regulate, or that federal judges should be compensated roughly in line with the lawyers who argue cases before them.

Nor can law schools do much directly to reduce the gap in pay between corporate lawyers and those in the public sector. Even if tuition were free, this would leave a massive gap in lifetime earnings, working conditions, and future exit options that would still encourage many to pursue careers in the private sector. Indeed, the gap in rewards between the public and private sectors is growing. Rates for banking, corporate, and commercial lawyers have grown far more quickly than rates for lawyers in other practice areas over the last several decades. (More recent data shows this trend continuing).

Corporate lawyers’ pay may seem high to some, but it is no higher than—and no less deserved than—the pay of the leading financiers and businesses people with whom they work.

Public pensions may provide a partial offset for low public sector pay but even public pensions are increasingly at risk for state and local government employees. Public servants believed in promises that taxpayers are increasingly unwilling to honor. Similarly, the federal government seems poised to renege on its promise to provide a compensation supplement for public service in the form of federal student loan forgiveness.  (One typically does not say "thank you for your service" by cutting someone's compensation after they've done the work).

Public service will never be a top career choice for a large enough proportion of the most energetic, hardest working and most capable graduates as long as choosing a career in public service entails a large financial sacrifice.

This is rarely a choice between a life of luxury and a life of modest virtue. For most individuals who are not independently wealthy, the choice between the public sector and private sector is a choice about the quality of housing, healthcare, transit, education, air, water, and physical security that they and their loved ones will enjoy and the quality (and length) of life they can expect. No speeches by faculty or university administrators about obligation, civic duty, and service will change this harsh reality. Nor will a very large proportion of people put the interests of an amorphous and indifferent “public” ahead of the tangible needs of their own families.

Elite universities’ resources are far more limited than is often assumed. Household networth in the United States is close to $100 trillion.  The endowment of all of the colleges and universities in the United States—which support hundreds of thousands of employees in the service of millions of students and other stakeholders—is between $500 billion and $1 trillion—i.e., less than 1 percent of household networth.

Most universities are part of the underfunded public sector. Many law schools already have far more full-time tenure track faculty in public law than private law, even though the career opportunities for their students are far better in the private sector. Universities similarly tend to be relatively shorthanded in high-demand fields like computer science, a few engineering specialties (see here), accounting, and economics. This may not be a matter of ideology or “virtue” so much as a concession to budgetary pressures.[1] Universities cannot compete with pay in the private sector.

Indeed, wealthy individuals could single-handedly contribute more than entire universities. The total networth of the Forbes 400—the 400 richest individual people—is $2.7 trillion, roughly four times the aggregate combined endowments of the thousands of colleges and universities in the United States. Bill Gates and his family foundation control more wealth than the endowments of Harvard, Yale, and Princeton combined. Even Bill Gates’ lakefront mansion (one of his multiple residences) is worth 15 times the typical endowment of colleges or universities.[2]

Mr. Gates—through his foundation, which funds think tanks, media organizations, and ostensibly “grass roots” advocacy groups—opposes expansion of public funding for education. Several of his grantees have led the charge to scale back federal student loan forgiveness. Others have sought to eviscerate teachers’ unions. In a recent interview, Mr. Gates—who named his residential compound after the summer palace of an emperor who ruled over a quarter of the world’s population— reluctantly conceded that perhaps he and his businesses should pay a bit more in taxes—but only after comparing progressive taxation to what goes on in “North Korea.”[3]

The American people—through the federal government’s power to tax—can afford to pay a fair price for the talent and energy of skilled labor. Educators should think twice before pressuring their students to concede to work on disadvantageous terms.

The sacrifices of those who are public-service oriented may serve as little more than an excuse to enable the wealthiest members of our society to pay less in taxes than they can and—in the views of those who see value in the public sector and believe it should be served by a talented workforce—should.

 

[1] To the extent that some public law faculty may resist hiring qualified tenure-track private law faculty for parochial or ideological reasons (such as furthering “social justice”), these faculty member are inappropriately substituting their own values for the best interest and autonomy of their students. Moreover, they are leaving the relatively small proportion of their students who are committed progressive activist woefully under-prepared to navigate the real world.

It is just as important for those who wish to fight for a more egalitarian society as for those who prefer the status quo to understand taxation, corporate finance, corporate governance, financial regulation, limited liability, civil procedure, capital structures, administrative law, bankruptcy and labor and employment law. (Just ask presidential hopeful, progressive firebrand, and bankruptcy and commercial law scholar, Senator Elizabeth Warren).

[2] There are close to 5,000 post-secondary institutions in the United States, most with very small endowments. The median endowment was $7.9 million and the mean was $10 million according to a 2014 report by ACE. Mr. Gates’s lakefront compound, “Xanadu 2.0,“ was reportedly worth around $124 million in 2014. More recent estimates place the mansion’s value between $150 and $200 million.

[3] After Mr. Gates unflattering BBC interview, his foundation stepped up efforts to fund (and presumably curry favor with) European media companies. The Gates Foundation had already extensively funded media companies within the United States.