Wednesday, June 30, 2010

Big Changes

Big changes are coming to Law Prof on the Loose.

Starting tomorrow, I will be on leave from GW while I serve as the Director of Research and Policy of the Administrative Conference of the United States ("ACUS"). I anticipate returning to my regular academic position in 2012.

I haven't spoken to my new boss about this yet, but I probably won't be blogging about politics, Supreme Court cases, and other public affairs while working for the government. I'm not planning on taking down the pre-existing blog posts (just as I am not recalling any of my prior publications, either), but further posts will have to be different, if they appear at all.

Expect no posting for at least a month or so, and then, if I blog at all, it will probably be on topics far removed from public affairs. Poetry, perhaps? Recipes, anyone?

Faithful Readers, I have appreciated your interest and support. It's been a little over three years and not quite 600 posts, including a couple of guest stints on Concurring Opinions and PrawfsBlawg. I've enjoyed this avenue of public expression. Your comments have been interesting and stimulating. Together, we have considered the rights and wrongs of judicial and political decisions, the foibles of the rich and powerful, and occasional notes from culture, sport, and life.

I'll miss you all during this hiatus. Hope to see you again soon.

Sunday, June 27, 2010

Will Law School Change?

A hot topic at law schools these days is whether the legal education business model is sustainable. Over at Balkinization, Brian Tamanaha suggests that law schools may be scamming students by taking advantage of students' unrealistic job expectations to get them to pay sky-high prices. An article by Daniel Theis (a student) in the latest Journal of Legal Education sounds the same theme. One of my own colleagues gave us a talk on the subject recently.

A common theme to the argument is that lawyers face permanent, structural changes in the market for their services. Clients, it is said, are no longer willing to pay top dollar for work by junior associates that really amounts to providing the training for these starting lawyers. Therefore, law firms can no longer afford to hire legions of juniors. High-salaried starting jobs at big law firms will become scarcer, and students will no longer be will to pay big bucks for an increasingly small chance at these jobs. In response, the argument goes, law schools will have to figure out how to deliver legal education at much lower cost (through greater use of adjuncts, Internet learning, etc.). There will also be a premium on skills and clinical education that will permit students to graduate ready for practice, and a de-emphasis on scholarship and other professorial activities that don't directly contribute to students' education.

It's always important to keep an eye on large-scale trends and to consider ways to improve. Law schools should take a hard look at trends in the legal world and consider whether they need to innovate. But I am somewhat skeptical about some of the changes that critics claim are inevitable.

First of all, it's not yet clear whether there really is a permanent, structural change coming in the provision of legal services or whether things will go back to their old patterns if the economy cyclically improves. But in addition, I've been hearing for at least a decade that the absurd cost structure of law schools can't possibly be sustained in the face of technological change. In the future, I've been hearing for a long time, a small number of superstars in each field will teach all the classes over the Internet, and the rest of us professors will be lower-paid, glorified TAs, who will grade the exams while our students watch the superstar teachers online.

I'm not saying this could never happen, but it hasn't happened yet. What all of these suggestions overlook, I would say, is something important about what law students are buying with their tuition dollars. Students are buying an education, but they are also buying the reputational value of their degree. That reputational value is very important.

If we professors abandoned every activity we engage in other than teaching, we could probably double the number of classes we teach. Then the school could fire half the faculty and deliver legal education at much lower cost. We could lower the cost still more if we taught everything over the Internet -- perhaps using faculty from other schools, as in the superstar model.

But what would happen to our reputation? A school like GW could probably coast on its prior reputation for five or ten years, but eventually the rest of the academy would notice that we weren't producing anything in the scholarship department, and our reputation would take a big dive, and with it the value of our students' degrees. That is why students have an interest in the scholarly production of their faculty. And as to Internet law schools, well, they do exist, but I haven't heard that their graduates are in much demand.

So I think that those forecasting big changes need to take more account of what schools need to do to invest in the reputational value of their students' degrees. I could imagine more change taking place at schools that aren't in the top 100 -- where the students are relying more on their moxie than on the reputational value of their degree to get jobs anyway. I'm not saying change isn't in our future, but I see an important counterweight that needs to be considered. Schools can't totally change the way they do business without considering what it will do to their reputations.

One change I would support, though, is fuller disclosure. Law schools should publish real information about their students' job statistics. Not just the bilge that is reported to U.S. News, but real information. If students are going to law school with the idea of getting a high-paying corporate job, they should be able to determine what their chances really are. Then they could make a more intelligent decision before they lay out their big tuition bucks.

Friday, June 25, 2010

Majority Rule Redux

An extension of unemployment benefits failed yesterday, because it is supported by a mere 57% of Senators.

I don't pretend to know whether extending unemployment benefits is really a good idea or not. Paul Krugman keeps saying that we need more of just this kind of government spending now, and he's got a Nobel prize in economics, so I'm inclined to agree with him. But it is at least a priori possible that we have reached the point where it's time to worry more about the deficit than about the recovery, and deciding which side is right is not my area of expertise.

But what I do know is this: our political system is broken, and the filibuster rule in the Senate is the chief culprit.

It's absurd that something supported by 57% of our elected representatives can't get legislatively passed. These days, if an individual candidate gets 57% of the vote in an election, that's a big, solid win. So why can't policies supported by 57% of our elected representatives get enacted?

Health care reform, ultimately enacted with the aid of the Senate's "reconciliation" rule (which doesn't permit filibusters), showed how efficient Congress can be when it isn't bound by an absurd supermajority requirement. The House of Representatives passed a series of fixes to the health care reform bill, the Senate (by a healthy 56-43 majority) adopted them with just a couple of tiny changes, and the House agreed to the changes -- all within a week!

Imagine where we could be if the Senate needed only a majority to pass any legislation. Not just these unemployment benefits, but financial reform, climate change legislation, energy policy reform, and probably even immigration reform could all be accomplished already.

Maybe Congress would enact good legislation, maybe not. Things could be a lot better because Harry Reid wouldn't have to agree to outrageous special deals to buy those last few votes. Things could be worse because the majority would go out of control. But things would get done. And if the people didn't like what got done, they could vote for someone else. That's got to be better than what we have now.

Maybe filibusters made sense at some earlier stage in our nation's history. They might have been OK in past days when there was a gentlemen's agreement to use filibusters only on occasions of great moment. But now that they are used every day, on every kind of legislation or nomination, they are a fatal impediment to basic governance. The filibuster rule must go.

Thursday, June 24, 2010

The Hobgoblin of Little Minds

I know it's difficult to maintain methodological consistency over many years of cases, but one might expect to see some basic level of consistency over, say, a month. But even that can be tough.

In today's opinions, Justice Thomas joins a concurrence by Justice Scalia, which chides the Court for relying on the Advisory Committee Notes to a Federal Rule of Criminal Procedure. The Notes are not authoritative, Justice Scalia complains -- only the text of the rule matters. But it wasn't even a month ago that Justice Thomas joined, without comment, a Court opinion that relied on Advisory Committee Notes to a Federal Rule of Civil Procedure, even though Justice Scalia concurred separately, raising the same point. (As I said at the time, Justice Scalia is extending his anti-legislative history campaign somewhat unthinkingly here, but that's another story.)

Are the Criminal Rules so different from the Civil Rules? I don't think so. It looks more like Justices don't sweat every detail of the opinions they join. In today's case, Justice Thomas may have joined Justice Scalia's opinion primarily for its bigger difference with the Court's decision (Justice Scalia thought part of the statute at issue was unconstitutional), and he may not have cared so much about this interpretive methodological detail. The big issue wasn't present earlier this month when Justice Thomas went along with consulting Advisory Committee Notes -- again, perhaps without really intending to commit himself on that particular point.

I know a foolish consistency is the hobgoblin of little minds, but these methodological issues do matter, and a little consistency on them would be welcome.

Trends in Legal Writing

Today's Supreme Court decisions display a recent trend: the statement of facts in the Court's decisions has become so long and boring that the Court has taken to previewing the facts in the introduction. The result is that the introduction contains all the facts you really need to know to understand the decision, so you can skip over the actual statement of facts, which is bloated with unnecessary detail. Check out these examples.

It makes one sigh for the opinions of old, when facts were stated crisply and succinctly and the opinion got right to the good parts. Take a look at Judge Cardozo's classic opinion in Palsgraf v. Long Island Railroad Co.: the statement of facts is one short paragraph. It's kind of like the statement-before-the-statement in today's Supreme Court opinions. If only the Court could limit itself to that minimalist statement instead of using it merely as the preview before the detailed statement.

There's a reason why statements should be short. Not only does it make the opinion easier to read, but it makes the case easier to apply. If a court states 20 facts in its statement of facts, it is implying, or at least leaving open the possibility, that all 20 facts were relevant to its decision. What if the next case has 18 similar facts but two different ones? Do we have to go back to the Supreme Court to find out if those two were critical to the decision? Possibly. If the Court states only 5 facts in its statement, it's much easier to tell whether the decision applies to a subsequent case.

Therefore, the statement should be rigidly limited to relevant facts. Don't embellish.

Tuesday, June 22, 2010

The Slipperiest Slope

We all know that grade inflation is widespread at law schools, but I had never heard of a school's doing what Loyola of Los Angeles has now done: it retroactively changed grades, by adding half a step (actually .333) to all grades awarded in the last few years. So every B- became a B, every B+ an A-, and so on.

Apart from being a little tough on anyone who got an A+ (I presume that grade isn't being changed), such grade inflation is bad because it amounts to deception. The goal of grade inflation (apparently expressly stated) "is to make its students look more attractive in a competitive job market." That is, the goal is to play on people's perceptions of what the traditional grades of A, B, and C mean, while giving grades that have different meanings.

Employers might fight back by ignoring the grades and relying on class rank instead. That would work -- you could call the grades A, B, and C or you could call them Apple, Fire Engine, and Giraffe, and it wouldn't matter as long as you had class rank -- but schools can thwart that tactic by abolishing class rank. That's what GW did when we raised our grading curve a few years ago.

I voted against the change to our grading curve because I thought it involved deception. And I didn't think that the fact that everyone else is involved in the same deception could justify it, any more than a student would be excused for cheating on the plea that everyone else was cheating too.

Over time, my view has evolved somewhat. As the proponents of the change argued at the time, grades have meaning only as a result of social understanding. There was supposedly a time when "C" meant "average," but certainly today a student who got all Cs would not be regarded as an average student. (I wonder if C was ever really the average grade actually given, or whether we have always lived in Lake Woebegone, where all the students are above average.) There is something to be said for the view that we have to give grades that match the current understanding. If all the other schools are now operating on a B+ average and we give grades on a B average, we are disadvantaging our students, and not necessarily achieving the goal of honesty.

Still, the whole thing leaves a bad taste in one's mouth. As today's NY Times piece observes, grade inflation is a never-ending arms race. Everyone uses the excuse that the social meaning of grades has changed to justify changing their own grades. And there's no point always being the last to catch up to the general trend -- in fact, every school has an incentive to be the leading edge of the trend. That, of course, just makes grade inflation go faster and faster.

It's a classic collective action problem. The problem could be addressed if there were some authority that had the power to impose national standards, but there isn't, and whatever the generally accepted view of the meaning of grades is, everyone has an incentive to cheat a little and have somewhat higher grades than that. There's no good solution, and I'll be torn when it next becomes our turn to raise our grades again.

Monday, June 21, 2010


In case you've been dying to know whether the Carmack Amendment trumps the Carriage of Goods by Sea Act with regard to the domestic inland segment of carriage conducted under a through bill of lading that contains a "Himalaya clause," you're in luck! The Supreme Court provided the answer today. I won't spoil it for you.

Still no Bilski and no decision about the constitutionality of the Public Company Accounting Oversight Board. They're putting off the good stuff for the very end.