Brian Leiter's Law School Reports

ABA's legal education council adopts stricter bar passage standards for law schools

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.

AAUP criticizes Vermont Law School's revocation of faculty tenure

Correctly so, as far as I can see.

Open letter of support for Prof. Wojciech Sadurski (Sydney)

Professor Sadurski, a leading legal theorist and scholar of constitutionalism, has been a vigorous and penetrating critic of the reactionary and authoritarian "Law and Justice" party in Poland ("PiS" is the Polish acronym); he has now become the target of both civil and criminal legal actions attempting to silence him.  The open letter is here, and they are accepting additional signatories in the comments.

$10 million gift for environmental law at Case Western

Wow!

"Please reject me: an Open Letter to the Harvard Law Review"

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

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.

New multi-year "Originalism Conference" at Yale funded by Rosenkranz Foundation...

...set up by the father of Georgetown constitutional law expert Nicholas Rosenkranz, a Yale Law alum.  The project will be led by Yale Law professor Akhil Amar and regular Yale visiting professor Steven Calabresi, who also teaches at Northwestern.

A case of bad editorial practice at a journal

MOVING TO FRONT FROM MONDAY--ADDITIONAL COMMENTS WELCOME

Professor Steven Davidoff Solomon (Berkeley) called to my attention a case of bad editorial practices, in  this instance, involving the Journal of Empirical Legal Studies, a distinguished journal in its field.   Briefly, JELS rejected an article of Professor Solomon's, sending along two referee reports; however, the editors revised one of the referee reports to make it sound less positive than it really was.  Professor Solomon discovered this because the referee had contacted him about his paper independently.   Professor Solomon submitted a "letter to the editor" of JELS about this matter, but JELS declined to break with its practice of not publishing such letters, so Professor Solomon supplied the letter to me (along with other documentation):  Download Letter to the Editor JELS.  The letter sets out the details of what transpired.

Journal editors are well within their rights to disregard the recommendations of referees or to disagree with their ultimate assessments.  Journal editors may also decide not to share referee reports with authors, or not to share them in full.  But what they should not do, out of respect for both their referees and authors, is unilaterally revise the content of a referee report to make it support their independent decision.  One hopes this is an anomalous incident.  I've opened comments here in case the editors or others wish to comment.  Comments must include a full name and a valid e-mail address, or they will not appear.

 

White House proposes to spend approximately nothing on early childhood education to minimize taxes for top 0.1 percent (Michael Simkovic)

NPR reports that the Trump administration has proposed a meager one-time increase in funding for childcare / early career eduction equal to approximately 0.0045 percent of GDP ($1 billion out of $22 trillion estimated 2020 GDP) or about 0.001 percent of household networth.  Total federal spending would increase to $5.4 billion, or 0.0225 percent of GDP. 

In contrast, Senator Elizabeth Warren has proposed to spend approximately $70 billion per year on childcare and early childhood education--13 times as much as President Trump.  Warren's plan would be financed with approximately one third of the revenue generated by an annual ultra-high net-worth wealth tax of 2 percent on personal fortunes above $50 million, and 3 percent above $1 billion.  It would therefore cost 99.9 percent of households nothing in increased tax burdens.

The White House explained that its less generous proposal was motivated by a desire to avoid spending "unsustainable amounts of taxpayer dollars" and instead come up with a plan that would be (politically) "viable."  

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QJE: Investments in education continue to provide economic benefits two and half centuries later (Michael Simkovic)

A recent article in the Quarterly Journal of Economics (the leading journal in economics) finds evidence that early investments in education in the 1600s through mid 1700s continued to provide economic benefits in the form of persistently higher eduction levels and 10% higher wages and centuries later.  

The study examined the economic performance of communities based on their proximity to Jesuit missions established and subsequently closed hundreds of years ago.  The Jesuits emphasized literacy and job training.  The missions were established in locations that were not particularly desirable in terms of population density, soil fertility, climate, or access to transportation and trade, because Franciscans who arrived earlier claimed the best locations for their missions.  The Jesuits were expelled from the Spanish Empire in 1767, at which point Jesuit missions shut down.

The closer communities were to Jesuit mission, the higher subsequent education levels and earnings, and the quicker communities adopted new technologies.  These benefits persisted for centuries.  The benefits are similar across national boundaries and do not appear to be due to institutional or legal differences.

Proximity to Franciscan missions, which emphasized healthcare and anti-poverty efforts rather than education, did not provide similar benefits.

Felipe Valencia Caicedo; The Mission: Human Capital Transmission, Economic Persistence, and Culture in South America, The Quarterly Journal of Economics, Volume 134, Issue 1, 1 February 2019, Pages 507–556, https://doi-org.libproxy1.usc.edu/10.1093/qje/qjy024

This article examines the long-term consequences of a historical human capital intervention. The Jesuit order founded religious missions in 1609 among the Guaraní, in modern-day Argentina, Brazil, and Paraguay. Before their expulsion in 1767, missionaries instructed indigenous inhabitants in reading, writing, and various crafts. Using archival records, as well as data at the individual and municipal level, I show that in areas of former Jesuit presence—within the Guaraní area—educational attainment was higher and remains so (by 10%–15%) 250 years later. These educational differences have also translated into incomes that are 10% higher today. The identification of the positive effect of the Guaraní Jesuit missions emerges after comparing them with abandoned Jesuit missions and neighboring Franciscan Guaraní missions. The enduring effects observed are consistent with transmission mechanisms of structural transformation, occupational specialization, and technology adoption in agriculture.

The Washington Post has provided a good summary.

How Big Tobacco’s star advocate became an education expert for the New York Times and Forbes (Michael Simkovic)

Richard Vedder, a leading opponent of excise taxes on cigarettes, takes a dim view of most of higher education.  Vedder depicts colleges and universities as overpriced, wasteful, and deserving budget cuts.  Vedder argues that academic freedom and research impede teaching marketable skills. 

The reality is that public investments in higher education more than pay for themselves.  More spending is linked to more innovation and better labor market outcomes. Educational quality and access have improved over time.  The economy would likely grow faster if governments invested more in education.  More people would find jobs, they would earn more money, and governments’ long-term fiscal position would likely improve.

Vedder would be easy to dismiss if not for his backing from industries that spend heavily on advertising and lobbying—like tobacco, for-profit education, and private student lending.[1]  Vedder has become a regular contributor to the New York Times, Forbes, and other publications with wide circulation, and frequently testifies before Congress. 

Despite his general antipathy to education, Vedder forcefully defends for-profit education.  Vedder likes that for-profit institutions have little interest in “promoting research, saving the earth [or] achieving progressive objectives.”  Perhaps harried adjuncts are less likely than tenured research faculty to assess whether taxing cigarettes saves lives.

Public health spillovers aside, for-profit education is typically not great for students or taxpayers. 

For-profit institutions spend far more of their revenue on sales and marketing and far less on instruction.  For-profits account for a disproportionate share of federal student loan defaults and federal subsidies.  Although for-profits typically serve weaker students, after accounting for student characteristics, for profits typically provide less value for the money than non-profit and public competitors.  For-profits are the only type of educational institution which have been shown to increase tuition after gaining access to federal student loans, without increasing quality.  Many for-profits have been linked to consumer fraud.

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