Brian Leiter's Law School Reports

Hiring committees for 2018-19 may announce themselves...

....here, thanks to the good offices of Sarah Lawsky (Northwestern).

Rostron & Levit update their guide to law review submissions

Professor Levit asked me to share this, which I'm happy to do:

Dear Colleagues,

We  just updated our charts about law journal submissions, expedites, and rankings from different sources for the Fall 2018 submission season covering the 202 main journals of each law school. 

For this round of revisions, we created hyperlinks for each law review to take you directly to the law review’s submissions page.

Again the chart includes as much information as possible about what law reviews are not accepting submissions right now and what dates they say they'll resume accepting submissions.  Most of this is not specific dates, because the journals tend to post only imprecise statements about how the journal is not currently accepting submissions but will start doing so at some point in the Fall.

The first chart contains information about each journal’s preferences about methods for submitting articles (e.g., e-mail, ExpressO, Scholastica, or regular mail), as well as special formatting requirements and how to request an expedited review.  The second chart contains rankings information from U.S. News and World Report as well as data from Washington & Lee’s law review website.

Information for Submitting Articles to Law Reviews and Journals:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019029

We’d welcome you to forward the link to anyone who you think might find it useful.   We appreciate any feedback you might have.

Happy writing!

All the best,

Allen and Nancy

Professor Allen Rostron

Associate Dean for Students and William R. Jacques Constitutional Law Scholar and Professor of Law

rostrona@umkc.edu

Professor Nancy Levit
Associate Dean for Faculty and Curators' Distinguished Professor and Edward D. Ellison Professor of Law

levitn@umkc.edu

UMKC School of Law
500 E. 52nd St.

I would urge faculty to ignore the Washington & Lee data, which is garbage.  Law review reputation/visibility tracks law school reputation/visibility, full stop.

Northwestern Lecturer Mark A. Cohen’s Angry Outburst on Twitter (Michael Simkovic)

I recently pointed out some factual problems with claims by Northwestern lecturer Mark A. Cohen.  Cohen, writing in Forbes, claimed that faculty terminations at Vermont Law School were proof that student debt was unsustainable, not only at Vermont, but at all law schools except for a handful of elite institutions. 

Here’s the problem: When student debt levels are unsustainable, student default rates are high.  But at Vermont--and at most law schools--default rates are low.[1] 

When Professor David Herzig pointed out some of the relevant literature to Mr. Cohen, Cohen responded with the following angry outburst on twitter:

“That "evidence" has been panned by every credible source I know. The methodology and premises upon which the conclusions were drawn are laughable and fly in the face of real studies. I was a bet-the-company trial lawyer for many years--the "study" you cite is 3rd rate fiction.”

Low student loan defaults for law graduates are consistent with the peer reviewed literature, such as The Economic Value of a Law Degree (final version here), Timing Law School (final version here), and related work by me and Frank McIntyre about the value of legal education.  Law degrees generally provide benefits that are substantially greater than their costs, even toward the low end of the distribution, across race (final version here), sex and college major, both before and after the financial crisis, and including those who graduate during a recession.  More than the top 75 percent of law graduates are getting good value relative to a terminal bachelor’s degree.[2]

Strong student loan performance is also consistent with the After the JD study (compare waves I, II, and especially III), which showed rapid income growth for graduates of even low ranked ABA-approved law schools, and eventually, six-figure median full-time incomes. 

Law students’ low default rates have featured in the business strategies of many student lenders, who are eager to refinance law student debt for interest rates substantially below those offered by the federal government.

Professor Herzig asked Mr. Cohen to be more specific about his sources and objections.

Mr. Cohen has yet to specify what he believes is wrong with the methodology in the studies—which were authored with a PhD labor economist, peer reviewed and carefully vetted, use high quality government data, use mainstream methods and assumptions that are well established in labor economics, and include sensitivity analyses and robustness checks.  The results have been replicated by other researchers.

Mr. Cohen also has yet to specify which “real studies” he thinks use better data and more widely accepted methods, and why.  He has yet to explain how his litigation experience qualifies him as a labor economist, statistician, and literary critic.  Or why, as a seasoned litigator, he thinks so many of the lawsuits against law schools have been dismissed.

Nevertheless, Mr. Cohen asks an interesting question: why have law school applications declined even though law school is a good value?  First, it should be noted that law school applications are now increasing nationally.  But there’s no evidence that either increases or decreases in law school applications accurately predict changes in the value of legal education.

With those caveats in mind, the question of what caused the decline starting in 2010-2011 is a good one.  The drivers of law school applicant numbers are not well understood, but one contributing factor might be a flood of negative press coverage starting that year in the New York Times, the Wall Street Journal, and the Chicago Tribune among others.  Although the coverage was often inaccurate, anecdotal, and contrary to the data, it was left uncorrected for too long.[3] 

The press mistook a recession that reduced employment rates and incomes across the board—but left the relative advantages of a law degree intact—for a law-specific problem.  Relevant knowledge, expertise, and numeracy are unfortunately not pre-requisites to obtaining column inches in a newspaper.  Fact checking often gets short shrift, and journalists and editors are extremely reluctant to post corrections when they make mistakes.  Law schools were too slow and too divided to respond effectively.  The AALS was not as focused on improving media accuracy as it should have been.

Although far more information is available today than in 2010-2013, Mr. Cohen apparently overlooked the literature and repeated many of the same mistakes.  If Mr. Cohen has serious, well-reasoned, substantive critiques of the peer reviewed literature to which I and others have not responded already (see my contributions to Brian Leiter’s Law School Reports from 2013 forward), I would be delighted to hear them.  If not, Cohen should acknowledge his mistakes, print a correction in Forbes, and move on.

 

[1] Vermont Law School's 3-year cohort default rates over the last 3 years available (classes of 2012-2014) are between 0.3 and 1.2 percent, while the national average cohort default rate across educational institutions is close to 11.5 percent.  Nor are Vermont graduates defaulting in large numbers on their Perkins loans, which are not eligible for Income Based Repayment with debt forgiveness.

[2] There are approximately 200 ABA approved law schools and roughly another 30 that are not ABA approved. 

[3] See, e.g.,

• Newspapers’ negative law school coverage, 2010-2015
• New York Times Reporter Elizabeth Olson Claims That Professors Earning Less than First Year Associates are Paid like Law Firm Partners
• Why The New York Times Should Correct Remaining Factual Errors in Its Law School Coverage
• 6 factual errors and several misleading statements in recent New York Times story by Noam Scheiber
• An Open Letter to New York Times Journalist Noam Scheiber: Journalists Should Consult Peer-Reviewed Research, Not Bloggers
• Sandy Baum challenges media sensationalism and political hype about student loans
• Must be a slow news day
• N.Y. Times is Mistaken: Law Student Loans are Safe and Profitable for the Government
• Unpacking "over-education" claims
• New York Times relies on unrepresentative anecdotes and flawed study to provide slanted coverage of legal education
• Paul Campos has trouble with long division
• The Wall Street Journal’s Coverage of Law School Funded Jobs 
• New York Times contributors get an unpleasant surprise when they try to write about higher education without bashing it 
• Dangerous new bill could hurt taxpayers and make financing education more expensive
• Student loans are too small to cause a fiscal crisis for the federal government 
• How much do lawyers working in solo practice actually earn? 
• “Glass Half Full” author concedes problems with estimates of solo practitioner incomes and headcounts (updated 8/18)
• Some questions for Professor Benjamin H. Barton about his use of IRS data to estimate solo practitioner incomes 
• Brooklyn Dean Allard: Legal Profession Should Challenge Slanted, Inaccurate Press Coverage
• Pasquale responds to New York Times' latest critique of law student loans
• New York Times relies on unrepresentative anecdotes and flawed study to provide slanted coverage of legal education
• Law Schools’ Four Billion Dollar Collective Action Problem 

University of Illinois, Chicago Board approves acquisition of John Marshall Law School in Chicago (UPDATED)

A big moment for the legal education landscape in Chicago if this goes through and if the new UIC John Marshall Law School offers state resident tuition discounting comparable to that at the University of Illinois, Urbana-Champaign.  While Urbana-Champaign won't be much affected, there will be considerable pressure on the private law schools in Chicago, namely, Chicago-Kent, DePaul, and Loyola-Chicago.  (Northern Illinois, another public law school in the far suburbs of Chicago, won't be helped either.)   The real pressure will be on DePaul, which has suffered from years of mismanagement and turmoil, and is the lowest rank of the three in the USNews.com rankings (#128 most recently; Loyola-Chicago and Chicago-Kent are solidly in the top 100).  

One unknown is how much of the John Marshall law faculty will be taken on board by UIC; in terms of scholarly prominence, it is clearly weaker than the faculties at Chicago-Kent, DePaul, and Loyola-Chicago.

UPDATE:  Dean Darby Dickerson at John Marshall kindly wrote and gave me permission to share some further information about the proposed merger:

The parties have negotiated that all full-time faculty will be transferring to UIC, with their tenure status, rank, and pay intact.

In addition, emeritus faculty will also have an opportunity to transition to emeritus status at UIC. 

During the 207-2018 academic year, we offered a voluntary buyout opportunity to our more senior faculty to allow them the ability to retire if they wished to avoid a benefits transition. Six faculty members accepted that offer; two retired in June and the other four will retire in December. 

We have three new faculty members who either have just started or will be starting later this month. We're in the process of hiring five new tenure-line faculty members who will begin in Summer/Fall 2019, and we then hope to hire about eight new tenure-line faculty members in the two years after closing. 

In June, the full-time faculty voted unanimously to support the transaction. The vote included several faculty members who had accepted the buyout opportunity. They were excited about the opportunity for the school and our students, but had personal reasons for desiring to retire before closing.

I learned also from IHE that the new UIC John Marshall Law School will offer in-state tuition rates.  That will make the new law school a force to be reckoned with in the legal education market in Chicago.

Which law schools could merge? (Michael Simkovic)

There are economies of size in legal education.  Larger law schools can support a more highly specialized faculty, offer students a wider range of course offerings, amortize fixed costs over a larger number of students, and negotiate better terms with their vendors.  As some law schools have shrunk to below efficient scale, mergers may offer an opportunity to quickly increase size and improve quality without increasing local capacity beyond sustainable levels.  As Stephen Bainbridge has previously noted, many industries respond to declining markets with a wave of mergers.  Law schools could follow suit.

Thus far, there have been mergers between (1) Mitchell and Hamline and (2) the two campuses of Rutgers (Camden and Newark).

Cornell has put together a Google map showing all of the ABA-approved law schools in the country. 

The map is a bit out of date--U.C. Irvine is missing, and Mitchell and Hamline are still separate law schools.  Nevertheless, the map is useful for thinking about which law schools could potentially pool their resources because:

1) They are geographically proximate

2) They serve a reasonably similar profile of students

3) They are organizationally similar (public vs. private; standalone vs part of a university; secular vs. religious)

The map only shows 1 (it would be nice to have color coding for other info), but those who are familiar with law schools can fill in the blank information.  In areas like Boston, San Francisco, Chicago, and the Greater New York City area, which have a high density law schools in close proximity to one another, to my mind there are possibilities that suggest themselves.

The trouble at Vermont Law School isn't due to "unsustainable" debt levels for students--but it might be because of unsustainable tuition discounting and underinvestment in outreach (Michael Simkovic)

Vermont Law School recently stripped many of its tenured faculty of tenure.  A recent article in Forbes by Mark Cohen, a lecturer at Northwestern, claims that Vermont's financial problems are a sign that tuition is too high and student debt is unsustainable. 

The data doesn't support his contention.  When student debt levels are unsustainable, student default rates are high.  But at Vermont--and at most law schools--default rates are low.  Vermont Law School's 3-year cohort default rates over the last 3 years available (classes of 2012-2014) are between 0.3 and 1.2 percent, while the national average cohort default default rate across educational institutions is close to 11.5 percent.  Nor are Vermont graduates defaulting in large numbers on their Perkins loans.  The 2016 default rate, the most recent available, was 3.5 percent for Vermont, versus an average across all educational institutions of around 11.5 percent.  Perkins loans are not eligible for Income Based Repayment, so Vermont's relatively strong performance is likely not due too a disproportionately large share of its graduates enrolling in IBR.  (Not all Vermont grads will practice law in Vermont, but lawyers in Vermont are actually paid reasonably well--around 120,000 on average according to the BLS).

Vermont Law School's problem is not that tuition is so high that student debt levels are unsustainable relative to students' post graduation income and other financial resources.  Rather, Vermont's problem seems to be that there are too few students, and because of aggressive tuition discounting intended to attract them, the students who matriculate are paying too little to make the school financially healthy.  Vermont Law School's  2016 529 shows that around 90 percent of incoming students received some scholarship, and half of students receive half tuition scholarships or better.  

Vermont Law School could try to respond by offering even more scholarship, but its competitors have deeper pockets, and can outspend Vermont until it runs out of room to maneuver.  Escalating a price war that Vermont will surely lose would be foolish. Degrading the quality of its education by relying on more lecturers and adjuncts risks causing a death spiral in which quality, enrollments, reputation, and revenue per student all continue to drop.

To be successful and sustainable in the long run, Vermont may need to find a way to attract students--not just from Vermont, but from across the region--other than offering a cut-rate price.  Rather than compete on price, Vermont should find a better way to reach out to those students who are most likely to find Vermont's offerings appealing.

Lateral hires with tenure or on tenure-track, 2017-18

These are non-clinical appointments that will take effect in 2018 (except where noted); I will move the list to the front at various intervals as new additions come in.   (Recent additions are in bold.)  Last year's list is here.  Feel free to e-mail me with news of additions to this list.

 

*Kerry Abrams (immigration law, family law) from the University of Virginia to Duke University (to become Dean).

 

*Robert Ahdieh (international trade, financial regulation, federalism) from Emory University to Texas A&M University (to become Dean).

 

*Richard Albert (constitutional law, comparative constitutional law) from Boston College to the University of Texas, Austin (effective January 2018).

 

*Hilary Allen (financial regulation, corporate) from Suffolk University to American University.

 

*Albertina Antognini (family law, property) from the University of Kentucky to the University of Arizona (untenured lateral).

 

*Olufunmilayo Arewa (intellectual property, international trade, entrepreneurship, law & technology) from the University of California, Irvine to Temple University.

 

*Lisa Avalos (criminal law) from the University of Arkansas, Fayetteville to Louisiana State University (untenured lateral)

 

*Mario Barnes (constitutional law, criminal law, national security law, race & the law) from the University of California, Irvine to the University of Washington (to become Dean).

 

*Joshua Blank (tax) from a professor of practice position at New York University to the University of California, Irvine.

 

*Khaled A. Beydoun (constitutional law, civil rights, torts) from the University of Detroit Mercy School of Law to the University of of Arkansas, Fayetteville.  

 

 *Binyamin Blum (legal history, evidence, criminal procedure) from Hebrew University, Jerusalem to the University of California Hastings (effective spring 2018) (untenured lateral). 

 

*Jeremy Bock (intellectual property, civil procedure) from the University of Memphis to Tulane University (untenured lateral).

 

*William Boyd (environmental law, energy law) from the University of Colorado, Boulder to the University of California, Los Angeles.

 

*Samuel Bray (remedies, property, constitutional law) from the University of California, Los Angeles to the University of Notre Dame.

 

*Emily Bremer (administrative law, legislation, civil procedure) from the University of Wyoming to the University of Notre Dame (untenured lateral).

 

*Jennifer Chacon (immimgration law, constitutional law, criminal law & procedure) from the University of California, Irvine to the University of California, Los Angeles.

 

*Anupam Chander (law & technology, international trade) from the University of California, Davis to Georgetown University.

 

*Stewart Chang (family law, comparative law) from Whittier Law School to the University of Nevada, Las Vegas.

 

*Jessica Clarke (sexual orientation, gender & law; employment discrimination; constitutional law) from the University of Minnesota to Vanderbilt University.

 

*Frank Rudy Cooper (criminal procedure, civil rights, race, gender & law) from Suffolk University to the University of Nevada, Las Vegas.

 

*Seth Davis (administrative law, federal courts, federal Indian law, fiduciary law) from the University of California, Irvine to the University of California, Berkeley.

 

*Diane Desierto (public and private international law) from the University of Hawaii to the University of Notre Dame (School of International Affairs).

 

*Melissa J. Durkee (international law, transnational law, corporate) from the University of Washington, Seattle to the University of Georgia.

 

*Atiba Ellis (election law, civil rights, race & the law) from West Virginia University to Marquette University.

 

 *Victor Fleischer (tax, corporate law) from the University of San Diego to the University of California, Irvine.

 

*David Franklyn (intellectual property, law & technology) from the University of San Francisco to Golden Gate University.

 

*Nuno Garoupa (law and economics, comparative law) from Texas A&M University to George Mason University.

 

*Brandon Garrett (criminal procedure, civil rights) from the University of Virginia to Duke University.

 

*Andrew Gold (private law theory, fiduciary law, corporate) from DePaul University to Brooklyn Law School.

 

*Philip Hackney (tax) from Louisiana State University to the University of Pittsburgh.

 

*Gillian Hadfield (law & economics, contracts, institutional design, regulation of markets) from the University of Southern California to the University of Toronto.

 

*Victoria Haneman (trusts & estates; tax) from Concordia University (Idaho) to Creighton University (untenured lateral).

 

*Christopher Holman (intellectual property, law & biotechnology) from the University of Missouri, Kansas City to Drake University.

 

*Robert Jackson, Jr. (corporate law) from Columbia University to New York University (though he will be on leave initially while serving on the SEC).

 

*Dalié Jiménez (bankruptcy, consumer law) from the University of Connecticut to the University of California, Irvine.

 

*Eric Johnson (torts, science and law, intellectual property) from the University of North Dakota to the University of Oklahoma (untenured lateral).

 

*Kit Johnson (immigration) from the University of North Dakota to the University of Oklahoma (untenured lateral).

 

*Kristin Johnson (financial markets, corporate) from Seton Hall University to Tulane University.

 

*Michael Kang (election law) from Emory University to Northwestern University.

  

*Orin Kerr (criminal procedure, computer crime law) from George Washington University to the University of Southern California (effective January 2018).  

 

*Robert Knowles (civil procedure, national security law) from Valparaiso University to the University of Baltimore (untenured lateral).

 

*Eugene Kontorovich (constitutional law, federal courts, public international law) from Northwestern University to George Mason University.

 

*Rebecca Kysar (tax) from Brooklyn Law School to Fordham University.

 

*Jill Wieber Lens (torts, products liability, remedies) from Baylor University to the University of Arkansas-Fayetteville (effective January 2018).

 

*Sheldon Bernard Lyke, (property, trusts & estates, critical race theory) from Whittier Law School to Northern Kentucky University Chase College of Law (untenured lateral)

 

*Suzette Malveaux (civil procedure, civil rights, complex litigation) from Catholic University to the University of Colorado, Boulder.

 

*David Marcus (civil procedure, administrative law, complex litigation) from the University of Arizon to the University of California, Los Angeles.

 

*Margaret Sova McCabe (food & agriculture law) from the University of New Hampshire to the University of Arkansas, Fayetteville (to become Dean).

 

*Khrista McCarden (tax) from Pepperdine University to Tulane University (untenured lateral).

 

*Jeremy R. McClane (corporate, securities, commercial law) from the University of Connecticut to the University of Illinois, Urbana-Champaign (untenured lateral).

 

*Justin McCrary (law & economics, empirical legal studies, corporate) from the University of California, Berkeley to Columbia University.

 

*Agnieszka McPeak (torts, law & technology, privacy) from the University of Toledo to Duquesne University (untenured lateral).

 

*Curtis Milhaupt (Japanese law, East Asian legal system comparative corporate governance) from  Columbia University to Stanford University (effective January 2018). 

*Seema Mohapatra (health law, bioethics, biotechnology law) from Barry University to Indiana University, Indianapolis.

 

*Peter Molk (corporate and insurance law) from Willamette University to the University of Florida, Gainseville (untenured lateral).

 

*Michael Morley (election law, remedies, federal courts) from Barry University to Florida State University (untenured lateral).

 

*Melissa Murray (family law, law & sexuality) from the University of California, Berkeley to New York University.

 

*Anne Joesph O'Connell (administrative law) from the University of California, Berkeley to Stanford University. 

 

*Chris Odinet (commercial law, consumer finance, property) from Southern University to the University of Oklahoma, Norman (untenured lateral).

 

*Angela Onwuachi-Willig (employment law, family law, civil rights, law & race) from the University of California, Berkeley to Boston University (to become Dean).

 

*Leigh Osofsky (tax) from the University of Miami to the University of North Carolina, Chapel Hill.

 

*Antony Page (corporate) from Indiana University, Indianapolis to Florida International University (to become Dean).

 

 *Frank Partnoy (corporate, securities) from the University of San Diego to the University of California, Berkeley.

 

*Carla Pratt (education law, constitutional law, race & the law) from Pennsylvania State University Dickinson School of Law to Washburn University (to become Dean).

 

*Jedediah Purdy (property, environmental law, constitutional law) from Duke University to Columbia University (effective July 1, 2019).

 

*Annelise Riles (law & society, law & anthroppology) from Cornell University to Northwestern University (in Law and Anthropology, and as Associate Provost for Global Affairs).

 

*Christopher Roederer (constitutional law, comparative law, torts) from Florida Coastal Law School to the University of Dayton.

 

*Benjamin van Rooij (Chinese law, law & society) from the University of California, Irvine back to the University of Amsterdam.

 

*Jacob Rooksby (intellectual property, higher education law) from Duquesne University to Gonzaga University (to become Dean).

 

*James Ryan (education law) from Harvard University Education School back to University of Virginia (to become President of the University).

 

*Hillary Sale (corporate) from Washington University, St. Louis to Georgetown University.

 

*Erin Sheley (criminal law and procedure) from the University of Calgary to the University of Oklahoma, Norman (untenured lateral).

 

*Christina Skinner (financial regulation, securties, corporate) from  Brooklyn Law School to the Wharton School, University of Pennsylvania (untenured lateral).

 

*Julie Suk (antidiscrimination law, comparative constitutional law) from Cardozo Law School to the Graduate Center of the City University of New York (in Sociology).

 

*Madhavi Sunder (intellectual property, gender & the law) from the University of California, Davis to Georgetown University.

 

*Kim Talus (energy law) from the Universities of Helsinki & Eastern Finland to Tulane University (effective January 2018).

 

*Tania Tetlow (family law, civil & criminal procedure) from Tulane University to Loyola University, New Orleans (as President of the University).

 

*Rose Cuison Villazor (immigration law, equal protection, critical race theory) from the University of California, Davis to Rutgers University. 

 

*Kevin Washburn (Indian law, criminal law) from the University of New Mexico to the University of Iowa (to become Dean).

 

*Amy Wildermuth (civil procedure, administrative law, environmental law) from the University of Utah to the University of Pittsburgh (to become Dean).

  

*Andrew Woods (cybersecurity, law and technology, international law) from the University of Kentucky to the University of Arizona.

 

*Kevin Woodson (criminal procedure, professional responsibility, legal profession) from Drexel University to the University of Richmond.

 

*Ruqaiijah A. Yearby (health law) from Case Western Reserve University to Saint Louis University.

 

*Seval Yildirim (law and religion, comparative law, constitutional law) from Whittier Law School to California State University, San Bernardino (in Geography & Global Studies, as well as to become Associate Provost for Faculty Affairs and Development).

 

*Sandi Zellmer (environmentallLaw) from University of Nebraska, Lincoln to the University of Montana.

New York Times contributors get an unpleasant surprise when they try to write about higher education without bashing it (Michael Simkovic)

Ellen Shell, a journalism professor at Boston University, recently wrote an article for the New York Times arguing that while higher education confers vitally important advantages in the labor market,[1] education alone is not enough to overcome the disadvantages of childhood poverty and to promote greater equality.[2]  The purpose of Shell’s article was apparently to advocate for more comprehensive efforts to overcome poverty, above and beyond greater investment in higher education.[3] 

In the hands of editors at the New York Times, the title of Professor Shell’s Op Ed became "College May Not Be Worth It Anymore."

Several readers who contacted me about this article assumed that Professor Shell was an elitist who believed that the poor did not deserve to be as well educated as her own children.[4]  Apparently so did the author of the study she cited.  He says that to the extent that Professor Shell may have intended to downplay the benefits of education to poor children, she misunderstood his work.[5] 

I contacted Professor Shell to ask about the discrepancy between the contents of her article and its title, and whether New York Times editors had changed her title.

She wrote back that she was surprised by the title, that it did not match the contents of her article, that it must have come from the editor, and that it did not endear her to the administration at her university.

I knew to ask Professor Shell before jumping to conclusions because I have also been surprised to find that New York Times editors attached inapposite, critical titles to my work.[6]  And I have repeatedly heard similar complaints from other professors who have written Op Eds for the New York Times and from sources who have been misquoted by the New York Times and had their professional reputations damaged as a result.

Most readers of newspapers assume that the writer listed in the byline of a newspaper article or Op Ed is responsible not only for the text of an article, essay or Op Ed, but also for the lead or title that appears at the top. 

At the New York Times, that is not the case.[7] 

Editors choose the titles of Op Eds or articles.  Because many readers only read the lead or title, and not the full article, this gives senior management at media companies an enormous amount of power.  This power comes without public scrutiny, since usually only the name of the “author” (and not the editor) appears in the byline of the article.  

At many newspapers, editors use this power responsibly.  They try to succinctly and accurately describe the contents of the article while commanding readers’ attention.  But some editors change the titles of articles in ways that can mislead readers about the contents of articles and misstate the point of view of the authors of those articles.[8]  

This editorial overreach happens much too often at the New York Times, especially when writing about higher education.  Most writers and most sources are too afraid to speak out in public, out of fear of retaliation by the New York Times and other journalists.[9]  Retaliation could come in the form of negative coverage in the future, or being frozen out of future assignments or publishing opportunities.  This fear and self-preservation perpetuates these problems.

The New York Times has a well-documented bias against higher education, which has led to some sloppy, error-ridden journalism.[10]  Moreover, this agenda-driven journalism has hurt innocent and well-meaning people.  At least one law school targeted unfairly by the New York Times is likely to close, perhaps driving dozens of faculty and administrators from working in education and devaluing the degrees of thousands of alumni. 

The New York Times is a “strategic media partner” of the Gates Foundation.  New York Times leadership meets with Gates’ leadership behind closed doors and obtains advertising revenue from Gates and related entities.  The Gates foundation has spent tens of millions funding press coverage that is often hostile to education, while promoting online alternatives that depend on higher technology spending.[11]

New York Times callousness to collateral damage from inaccurate coverage extends past higher education.  An entire industry populated with small businesspeople—largely immigrants with little political or economic clout—was publicly condemned by the New York Times so harshly that business dried up and owners and employees protested en masse outside the New York Times Office.  Industry groups continue to resent the New York Times years later. 

The New York Times focused on nail salons’ noncompliance with labor laws.  It is unclear why—there’s not much evidence that nail salons are worse than any other industry that employs manual labor. 

The New York Times could have written about noncompliance with labor laws and abuses of immigrant workers by focusing on suppliers to massive corporate agribusinesses.  But that would entail picking a fight with a well-organized industry that could fight back.  Instead, the New York Times went after defenseless New York City nail salons.  When other journalists pointed out specific inaccuracies in the New York Times’ coverage (here and here), the New York Times sought to discredit its critics for their pro-business political views or how they earned their livelihoods.

When most law professors write about journalism, they draw upon a romantic vision that is decades out of date.  They imagine the New York Times covering civil rights protests in the Deep South in the 1960s, or bravely documenting human rights abuses during the Vietnam War over the objection of the Nixon administration.  They tend to see news organizations as so frail and so noble that the slightest possibility of legal liability for inaccurate coverage or privacy violations will impede information flow and devastate the proper functioning of our democracy. 

Law professors rarely consider that the threat of civil liability for media conglomerates might instead cause greater investment in fact checking and improvements in the quality and relevance of information.  Somehow, other countries with laws that demand more accuracy and decency from the press seem to maintain well-informed electorates and robust democracies. 

What law professors should see when they think of news organizations is our current reality: multi-billion dollar corporations with highly paid executives, demanding shareholders or wealthy benefactors, an army of inexpert, low paid, and highly insecure workers, and extremely effective government relations operations. 

Media companies’ business model depends not on supplying accurate information, but on attracting attention.  These massive corporations profit with impunity while carelessly damaging the livelihoods and reputations of those who are weaker than themselves.  What law professors should see is organizations that market themselves as providing factual truth but too often spend the bare minimum on fact checking—and only when it will mitigate the risk of legal liability. 

It is time to recognize media companies for the flawed institutions that they are, and to take seriously the role of the legal system in encouraging improvements.

 

[1] Professor Shell wrote that: “higher education [provides] protection against underemployment and the inequality it engenders. . . . On average it does [help in the job market] People who have dropped out of college . . . earn only a bit more than do people with only a high school education . . . [which is still typically] enough to cover their student loan debt. . . . No other nation punishes the “uneducated” as harshly as the United States. Nearly 30 percent of Americans without a high school diploma live in poverty, compared to 5 percent with a college degree, and we infer that this comes from a lack of education. . . . [H]igher education is . . . desirable . . . I’ve encouraged my own children to take that path.”

[2] Professor Shell explained how even though higher education helps boost earnings, education is not enough to overcome the disadvantages of poverty, in part because of unequal access to high quality education and in part because of unequal benefits: “African-American college dropouts on average earn less than do white Americans with only a high school degree. Meanwhile, low-income students of all races are far more likely to drop out of college than are wealthier students. Even with scholarships or free tuition, these students struggle with hefty fees and living costs . . . . College graduates born poor earned on average only slightly more than did high school graduates born middle class.”

[3] “[I]n 28 other wealthy developed countries [besides the U.S.], a lack of a high school diploma increases the probability of poverty by less than 5 percent. In these nations, a dearth of education does not predestine citizens for poverty.  It shouldn’t here, either . . . while we celebrate the most recent crop of college graduates, we should also acknowledge the many more Americans who will never don a cap and gown. They, too, deserve the chance to prove themselves worthy of good work, and a good life.”

[4] See also Journalism researcher: To correct misinformation, essential to monitor and respond immediately.

[5] He wrote: “[Our] estimates show high returns from college for [the] low-income group. . . . [W]e are certainly not saying that low-income folks shouldn't go to college because it has low returns for them.  That is certainly not true for many low-income groups, and should not be inferred from our work.”  Professor Shell responded by email (correctly) that even if the percentage increase in earnings is similar for those from poor families, the dollar increase is lower because of a lower base.  The benefits of education still exceed the costs by a large margin for those form poor families.  The benefits are even larger for those from rich families.

[6] I wrote an article about law firms shifting toward employing more highly paid, higher skilled, more highly educated workers (such as lawyers) and fewer lower-skill, lower-education workers (such as legal secretaries).  I emphasized that opportunities for lawyers were growing.  My article was originally titled “In law firms, lawyers and paralegals prosper while secretarial jobs disappear.”  An editor at The New York Times changed the title to “Overall stagnation in legal jobs hides underlying shifts.”

[7] It is unclear how widespread this practice is at other periodicals, but my understanding is that it is also common at the Wall Street Journal.

[8] This could be because the editor either: (1) believes the inaccurate lead will attract more views and reader “engagement”, which senior management values and reward because it will produce more advertising or subscription revenue; (2) has orders or incentives from on high to slant stories to advance the views of the owner of the newspaper, a powerful manager, or a major donor or advertiser; (3) has a personal axe to grind; or (4) genuinely cannot understand the central premise of an article he or she is supposed to be editing.

[9] Several people who have complained about their treatment at the hands of the New York Times have specifically asked me not to mention them, for these reasons.  Professor Shell has declined to identify the New York Times editors she worked with and indicated that she preferred that I not mention her at all.

[10] See:

• New York Times Reporter Elizabeth Olson Claims That Professors Earning Less than First Year Associates are Paid like Law Firm Partners;

• Why The New York Times Should Correct Remaining Factual Errors in Its Law School Coverage;

• 6 factual errors and several misleading statements in recent New York Times story by Noam Scheiber;

• An Open Letter to New York Times Journalist Noam Scheiber: Journalists Should Consult Peer-Reviewed Research, Not Bloggers;

• Sandy Baum challenges media sensationalism and political hype about student loans;

• Must be a slow news day;

• N.Y. Times is Mistaken: Law Student Loans are Safe and Profitable for the Government;

• Newspapers’ negative law school coverage, 2010-2015;

• Unpacking "over-education" claims;

• New York Times relies on unrepresentative anecdotes and flawed study to provide slanted coverage of legal education;

• Paul Campos has trouble with long division

[11] Gates sponsors the Education Writers Association, the Hechinger Report, NPR, EdWeek, PBS, and numerous other media organizations, think tanks, and advocacy groups.   (See also here, and here) Gates simultaneously competes with educational institutions through investments in online education.  Critics have pointed out that Gates-funded policy advocacy often promotes the interests of companies in which Gates or related parties invest while appearing to be charitable, disinterested, and independent.

More fun with Akhil Amar

Several readers sent me this (a propos this).

How secure is tenure? (Michael Simkovic)

Colleges and universities typically pay educated professionals a fraction of what similar individuals earn in the private sector (typically around 60 to 80 cents on the dollar) in return for greater job security and academic freedom.  In recent years, some law schools have effectively reneged on this bargain, slashing compensation, de-prioritizing research support and/or accepting outside funding that compromises academic freedom, and terminating even some tenured faculty members.

Recent reports suggest that Vermont Law School has taken this to the extreme.

According to the ABA Journal, Vermont Law School recently stripped tenure from 14 of its 19 tenured professors.  This was done without a formal declaration of financial exigency, and according to faculty members and the AAUP, apparently without the consent of faculty members typically required for such decisions. 

Professors were reportedly offered severance equal to 6 months salary and health benefits, but only if they agreed to sign a non-disclosure agreement and full release of all legal claims.  This package is no more generous than severance pay routinely offered to long-serving (but untenured) employees of for-profit corporations. 

Private sector employees typically receive 3 to 4 weeks of pay for every year served, with managers typically offered 6 months to 1 year.  Universities typically attempt to categorize faculty members as managers.  Managerial status prevents faculty from joining labor unions.

Although Vermont law school has suffered declines in its credit rating, these draconian cuts are taking place as the law school is experiencing a surge in enrollments, according to its dean.  This suggests that the restructuring may not be justified on grounds of financial exigency.  

According to the AAUP, terminated faculty members should be offered at least 1 year of severance or notice.

If the reports are accurate, Vermont has essentially acted as if tenure does not exist. This could potentially raise questions about whether Vermont is in compliance with ABA standard 405, but it is unclear how assertive the ABA or site visit teams will be in enforcing those standards. 

The incident highlights the importance of faculty members joining organizations like the AAUP which protect tenure and academic freedom.  At many institutions, tenured faculty members are increasingly getting the worst of both worlds--private-sector level risks with public-sector level compensation.

Anecdotally, faculty members with marketable skills and experience are increasingly leaving for more attractive positions in the private sector.

In the short term, faculty members considering a lateral move or prospective faculty members considering entering the academy should check a university's credit rating and very carefully research how the university has handled financial difficulties in the past.  Except for those given an opportunity to work at a handful of elite, well-funded, and highly credit-worthy institutions with strong tenure protections, educated workers may increasingly conclude that giving up a lucrative career in the private sector is inadvisable until tenure protections are adequately strengthened or compensation is increased to offset greater risk.

 

Further reading:

Lee Gardner, Want to Kill Tenure? Be Careful What You Wish For, Chronicle of Higher Education, June 18, 2018.