May 18, 2019
Details here, changes that could affect 10% of law schools that are presently accredited. What we are sure to see in response to this change is twofold: first, law schools worried about running afoul of the rule (and that will be more than just 10% of law schools) will increase bar-prep courses in the second and third years, and will invest in extra bar prep for the most at-risk students; and second, these law schools, almost all of which can't afford to shrink their incoming classes because of dependency on tuition revenue, will begin failing out more students after the first and second years. Unless the ABA monitors and regulates the latter, it will become the default move for at-risk law schools: they can still get a lot of the tuition revenue, without putting their accreditation at risk.
May 08, 2019
April 11, 2019
Mark Lemley (Stanford) kindly shared this quite amusing open letter:
Please Reject Me
An Open Letter to the Harvard Law Review
The Harvard Law Review has rejected my articles in the past. A lot. Indeed, they may have rejected me more than anyone else in the legal academy. I’m 0 for 140 or so at Harvard.
Several years ago, though, they stopped rejecting me. I’m not saying they accepted my papers. They haven’t, and probably they never will.
No, what I mean is that they just stopped responding at all. Oh, I get automated notices acknowledging that I’ve submitted a paper, vaguely hinting that they might read it. And I get acknowledgements when I expedite my article after getting an offer elsewhere. But it’s been at least seven years since I’ve gotten even an automated rejection, much less contact from a human being.
Every law professor knows the automated rejection form. There are the nice ones, assuring me that they really liked my paper and just “couldn’t come to consensus.” There is the everpresent “we have carefully considered your paper, but we get so many good submissions that we couldn’t take yours.” There is the more dispassionate “unfortunately we can’t publish your paper.” But from Harvard? Nothing.
And they’re not alone. In the last couple of years more top reviews have been ignoring papers altogether rather than giving us the bad news.
As an author, this sucks. Would I like you to accept my paper? Sure I would. But even more than that, I’d just like to know. Did you read it and decide it wasn’t good? Did you just not get to it in time? Did you take a look at the title, realize it’s about patent law, and read no further? [As far as I can tell the Harvard Law Review has never in its history published a patent law article. Certainly it hasn’t done so in the 31 years I’ve been in law]. Fine. I’m a big boy; I can take it. Just tell me, please.
Yes, I know you’re busy. But you’ve already got an automated system; it can’t be that much more work to generate an automated email telling me what I already suspected.
For starters, it would be the polite thing to do. [Think how you’d feel if authors didn’t withdraw their papers when they’d accepted offers elsewhere].
But you’re not just being rude to me. You’re being rude to every other law review editor in the country. We law professors have all submitted our papers to you, and we all harbor the secret hope that maybe this time you’ll publish our paper. And so we lobby for the longest possible expedite window and wait until the last possible moment to accept our offers, because we haven’t yet heard back from you, and maybe, just maybe, that’s because you’re furiously discussing whether to accept it before the deadline. You’re not. Of course you’re not. But hope springs eternal. Thus does your unwillingness to reject us gum up the works for everyone else, slowing acceptances and making it harder for reviews to find authors.
So please, Harvard Law Review, reject me. Save the ghosting for parties.
Mark A. Lemley
William H. Neukom Professor, Stanford Law School
Director, Stanford Program in Law, Science, and Technology
Senior Fellow, Stanford Institute for Economic Policy Research
Affiliated Professor, Stanford Symbolic Systems Program
partner, Durie Tangri LLP
co-founder, Lex Machina Inc.
March 02, 2019
President Trump uses scuffle at Berkeley as pretext to pressure universities into promoting views he endorses (Michael Simkovic)
A recruiter for a far-right group that maintains a "Professor Watchlist" was recently punched in the face while using slogans about "hate crime hoaxes" to recruit (or perhaps to intentionally provoke an incident) at the University of California Berkeley.
The FBI and Department of Education have both found that serious (at times deadly) hate crimes against racial, ethnic and religious minorities on campus have increased since President Trump took office and a group of conservative billionaires began funding efforts to depict universities as hostile to racially charged "free speech."
The New York Times has reported that neither the recruiter for the conservative organization nor the alleged perpetrator are students or employees of the University of California.
In spite of the minimal connection to the University--which responded professionally, condemned the attack, and worked with the police to arrest a suspect--President Trump and other conservative activists have expressed intent to use the incident as a pretext to threaten universities with cuts to federal funding unless universities do more to promote conservative views on campus.
UPDATE 3/4/2019: An advocacy group that works to protect academic freedom from efforts to politicize universities has prepared an online form to help those who wish to email their Senators to ask them to block President Trump's Executive Order.
UPDATE 3/6/2019: The AAUP opposes the executive order and has prepared an open letter that interested parties can sign here.
UPDATE 3/7/2019: The President of the University of Chicago, Robert Zimmmer, the former dean of Yale law school, Robert Post, and Professors Geoffrey R. Stone, Catherine J. Ross, and Noah Feldman have all spoken out against the proposed executive order. Teri Kanefield has published an interesting analysis of the proposal at CNN, linking it to Global Warming Denial and White Supremacy.
A Washington Post Editorial warns that the proposal violates conservative values, undermines conservatives' credibility and, if enacted, would create a bureaucracy that could be turned against religious institutions when Democrats retake the White House. And editorial in the conservative Washington Examiner makes a similar point about the relationship between academic freedom and religious freedom from government interference.
FIRE, a conservative advocacy organization which defends controversial speakers, is waiting for more details before expressing an official view on the proposal. However, individuals affiliated with FIRE have endorsed it.
Frederick Hess of the American Enterprise Institute, writing in Forbes, is strongly in favor of the proposal, arguing that federal funding for scientific research through the Department of Defense, the National Institutes of Health (NIH), the National Science Foundation should be subjected to ideological litmus tests as a form of "quality control." AEI does not explain the connection between the quality of university research teams working on better treatments for cancer or technologies to keep U.S. military personnel and civilians safe and the extent to which undergraduate student groups on campus choose to provide a platform for Milo Yiannopoulos or Ann Coulter's views on sex. Nor does he express any of conservatives' usual skepticism of top down government control.
In an essay defending Trump's proposed executive order in Inside Higher Education, Hess misunderstands a survey by FIRE of "self-censorship" by students on campus, which found that 54% of students say they sometimes pause before speaking every thought that occurs to them. The leading reasons students "self-censor," according to the survey, are because they believe they might be wrong and are concerned about their peers judging them. Students were not concerned about any formal sanction from the university for deviating from an approved ideology, but rather were worried that if they appeared foolish in public, they might lose social status with their peers. Some students also point to tact, empathy, and basic norms of decency as reasons to choose their words wisely. The same survey found that "Almost all students (92%) agree that it is important to be part of a campus community where they are exposed to the ideas and opinions of other students" and that "(87%) feel comfortable sharing ideas and opinions in their college classrooms." This is not strong evidence of problems on campus. Hess also incongruously cites the AAUP, which (as noted above and below) unequivocally opposes federal regulation such as Trump's proposed executive order that would strip universities of autonomy.
Adam Kissel, formerly at the Koch Foundation, FIRE, and the the Department of Education, is only slightly less enthusiastic in his support for Trump's proposed executive order. Writing in the National Review, Kissel argues that although in an ideal world the federal government would spend nothing funding scientific research, conservatives would be justified politicizing federal research funding as retaliation for liberal efforts to deny federal research funding to principal investigators who engage in sexual harassment, inadequate due process for those accused of sexual harassment on campus, overly burdensome internal review boards that are established to ensure that scientific research does not unethically harm human test subjects, and campus speech codes meant to prevent harassment and emotional abuse. Kissel argues that conservative control of universities should be enforced through courts rather than an administrative agency to ensure that conservative advocacy groups continue to have influence even if Democrats take control of the White House.
February 28, 2019
With more than three dozen law schools now accepting the GRE for admissions purposes, this question is no doubt on the agenda at many schools across the nation. Nearly four times as many students take the GRE each year as take the LSAT. Are these two pools of students comparable in terms of academic achievements and intellectual ability? I would guess the GRE group is, on average, stronger. Remember the pool of GRE-takers includes those aspiring to PhDs in philosophy, economics, physics, chemistry, electrical engineering, linguistics, and mathematics. The GRE includes both verbal and quantitative sections; one suspects that the average LSAT-taker is not going to do as well on the latter as the average student aspiring for a PhD in any STEM field. From what little I know, I would guess the GRE verbal section is the better predictor of law school performance than the quantitative section, and that a 98th percentile GRE verbal score is better than a 98th percentile LSAT score.
But I may be completely wrong!
As it happens, the Educational Testing Service has offered a conversion tool here. The tool seems to confirm that ETS views the GRE as a bit harder than the LSAT (and it clearly gives more weight to the verbal score than the quantitative, although that matters too). I'd be glad to hear from readers with more knowledge about these questions; please e-mail me, and I'll do a follow-up post in a week or two depending on what I learn.
February 21, 2019
A French court recently ordered Swiss Bank UBS to pay a penalty of 4.5 billion Euros (equal to about $5.1 billion U.S. Dollars) for allegedly facilitating tax evasion. The U.S. fined UBS only $780 million for similar charges in 2009 (the equivalent of $890 million in today's dollars).
To put this into context, France's GDP is about 13.4 percent of U.S. GDP, and France has proportionately fewer ultra-high net worth individuals (only 6.5 percent as many billionaires, who on average are less wealthy than billionaires in the U.S.). Thus, scaled by number of billionaires, France fined UBS more than 100 times as much as the U.S. fined UBS for facilitating tax evasion (scaled by GDP, nearly 50 times as much).
The U.S. fined Credit Suisse around $2.5 billion in 2014, which makes France's UBS penalty still proportionately around 33 times harsher than the recent U.S.-Credit Suisse settlement.
France, Italy, Spain, the UK, Sweden,Greece, Ireland, Bulgaria, Israel, Jordan and the Netherlands are facing popular protests over regressive tax policies that protestors say excessively favor the rich over the middle and working class. Protests in France were set off by repeal of wealth taxes and other regressive tax policies, social spending cuts, and loosening labor protections.
UPDATE 2/25: This article was corrected to reflect that fact that the U.S. fined UBS $780 million in 2009, not $78 million as was reported in the Financial Times story linked above. Additional context about a Credit Suisse settlement was provided. Thanks to Pierre-Hugues Verdier (UVA) for pointing out the error.
February 20, 2019
Should law schools be penalized for admitting students from wealthy families who are not motivated to work? (Michael Simkovic)
Scott F. Norberg argues for a law school accreditation standard tied to student employment outcomes. The proposal is interesting, and may have some advantages over a standard tied to bar passage rates, for example because it does not give state bars--who can make the bar exam more or less challenging and have incentives to strengthen barriers to entry--excessive control over access to legal education. However, there are several potential concerns.
Employment is systematically higher among certain demographic groups across education levels for reasons that have little to do with value added by law school. An employment-outcomes based standard could encourage law schools to focus on admitting groups with higher expected employment.
February 13, 2019
February 01, 2019
I agree with Prof. Simkovic that there are costs to denying tenure if only one or two law schools have serious tenure reviews--so that's our collective action problem in law schools. In almost all other fields, elite departments deny tenure at much higher rates than in law, where 95% get tenure according to Professors Chilton et al. By contrast, in other fields, rates of tenure appear to hover around 25%, maybe a bit higher. Somehow all these other fields have pulled this off; the interesting question is what's holding law back? I speculated about this many years ago (2004, so bear that in mind). I'm opening comments for thoughts from readers and further responses from Prof. Simkovic and other academics. (Comments are moderated, and may take awhile to appear, so be patient.)
Brian Leiter and Paul Caron both recently noted a study by Adam Chilton, Jonathan Masur, and Kyle Rozema which argues that law schools can increase average faculty productivity by making it harder for tenure track faculty to get tenure. While this seems plausible, denying tenure more often is no free lunch.
A highly regarded study by Ron Ehrenberg (published in the Review of Economics and Statistics) found that professors place a high monetary value on tenure, and a university that unilaterally eliminated tenure would either have to pay more in salary and bonus or suffer a loss in faculty quality. After controlling for faculty quality, university rank, and cost of living, university economics departments that are less likely to offer faculty tenure must pay untenured faculty more, in part to compensate for increased risk. Reduced tenure rates is associated with higher productivity, but it is costly.
It's easy to understand why. A promising candidate with offers from otherwise comparable universities A and B would be unlikely to take an offer from A knowing that A denies tenure 70 percent of the time while B only denies tenure 10 percent of the time.
Faculty who are untenured and at an institution with high tenure denial rates would also have strong incentives to spend their most productive years avoiding publishing anything that might upset private sector employers who could give them a soft landing in the event that they are denied tenure. Quantitative measures of faculty "productivity" based on number of citations and publications don't capture the harmful qualitative shift this would produce in faculty research, particularly in an area like law.
There are numerous other advantages to tenure (and disadvantages to weakening it), which I've discussed here and here, including protecting intelletual freedom, encouraging faculty to share rather than hoard knowledge, promoting investment in specialized skills, aligning faculty and institutional incentives, increasing the rigor of teaching and improving outcomes for students (compared to use of adjuncts).