Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1573:legal-reasoning-redux-5&catid=38:there-and-never-back-again&Itemid=65

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About that thing going on in Syria

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Here's what we know is going on in Syria: There's a rebellion that's been going on for about two and a half years. A ton of people have died, including a lot of civilians known to have been killed by the Assad regime. We also know that someone has used chemical weapons, it was probably Assad, but may have been the rebels, there may be some false flagging going on, and it may be the case that both sides have used chemical weapons.

Anyone who heard Obama's "red line" comments a while back would know that Syria using chemical weapons would be apparent regime suicide. Assad can possibly win a protracted civil war, but if the United States gets involved it's going to be game over for him, and chemical weapons have such a huge stigma that he should expect to gain many other opponents and lose any allies who are on the fence.

Of course, he probably has used chemical weapons, and ended up calling Obama's bluff. That's going to be deeply embarrassing for the President. Even if Congress does vote to strike, asking for permission to back up a threat makes him appear weak, so even the best case scenario for Obama is still pretty bad. There's a problem with this plot though -- it doesn't explain why Assad would use chemical weapons. What does he gain from embarrassing Obama, or even for making the US look like it won't back up its threats? It might embolden his supporters some, but that's a huge risk to take for what may be minimal gains.

There is the possibility that Assad is either stupid or desperate or desperately stupid, but at the international level you have to suspect that there's a larger strategy at work. Our Mentat is suffering from a dental emergency at the moment though, so we're going to have to turn to another angle of the Syria crisis, the legal angle.

 

Under international law, there are only two grounds for an attack against a foreign nation: Self Defense, and a United Nations Security Council resolution. With China and Russia holding veto power, such a resolution against Syria will never come, and a civil war in Syria poses no imminent threat to the United States. ...Political gymnastics aside, of course. Could a civil war result in chemical weapons slipping out of the country and into the hands of terrorists? Yes. Is destabilization in the Middle East something the United States should be worried about? Yes. But if that counts as a threat so imminent that an attack can be classified as self defense, then so could a preemptive strike against any leader who we thought might have sympathies with our opponents, along with a whole host of other very weak reasons, and self defense would become an utterly meaningless concept.

Doug Bandow, writing for the Cato Institute, pointed out another interesting legal angle to the Syrian conflict. As we all know, chemical weapons are banned under international treaties. What you might not know is that five nations have not signed on to that treaty: North Korea, South Sudan, Egypt, Angola, and yeup, Syria. (In South Sudan's defense, they're a new nation and maybe haven't gotten around to it yet.) In addition, Myanmar and Israel have signed it, but the treaty was not ratified by their national legislatures.

Since Syria hasn't signed on, that makes it very hard to argue that the United States should intervene solely because of the use of chemical weapons. Plenty of dictatorial regimes have killed their own civilians, and with a wide variety of weapons. Chemical weapons aren't even particularly deadly compared to other modern weapons. The high end estimate is about 1400 people killed with sarin in Syria. When the US invaded Iraq in 2003, it killed about 30,000 Iraqi soldiers without the use of chemical weapons. Since the invasion, over 20,000 coalition and Iraqi security forces have been killed -- without the use of chemical weapons.

And one last point... DMDNB, 2,3-dimethyl-2,3-dinitrobutane, the explosive in C4 and other plastic explosives, is a chemical, so the distinction really is a pretty silly one.

This is why we can't have nice things kept away from not nice things

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In New York City, real estate developers often cut deals with the local government in order to get zoning variances and tax breaks, and often what they have to give up is a slice of their profitability by providing a certain number of affordable apartments. A new development on the side of the Hudson River on the Upper West Side has just such an arrangement; developer Extell is making 55 out of the 219 units in its luxury condo building affordable. Condo owners have to shell out a minimum of a million dollars to live their, but the affordable units will go for as little as $845 a month.

So of course, Linda Rosenthal, who represents Manhattan in the State Assembly, wants to shut the project down. Why? Because the condo would have a separate entrance and elevator for the affordable units. Oh the humanity!

Speaking to the local Fox affiliate, Rosenthal said:

My question is, why do the affordable units have to be segregated apart from the condos that the wealthy can afford to buy?

Developers up and down the west side and across the city manage to inter-mingle the affordable units with the non-affordable units – it’s done everywhere. There’s no reason that there needs to be segregation.

Rosenthal's objection underscores the basic problem with government in the Big Apple. "What do they have to be segregated," "There's no reason that there needs to be segregation."

They don't have to do it, they choose to do it, and private citizens shouldn't have to justify their choices to a government niceness council. The government can rightly put certain stipulations on the zoning and tax perks, things like the units need to have windows, and a minimum size, and maybe some paint on the walls. But Rosenthal wants to go beyond that and use the building process as a way to ensure that poorer residents of New York City don't have to suffer the indignity of using a separate entrance from the rich folks.

Well here's a news flash Ms. Rosenthal: There already is a separate entrance. It's called the Triborough Bridge.

Stop and Frisk: Racist and Sexist Policy is Racist

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A New York Judge has finally slapped down the state's controversial Stop and Frisk policy on grounds that it violated the 4th and 14th Amendments was doubleplus ungood. ABA Journal coverage of the decision points out that racist underovertones to the policy:

In 52 percent of those 4.4 million stops, the person stopped was black, in 31 percent the person was Hispanic, and in 10 percent the person was white. Weapons were seized in 1 percent of the stops of blacks, 1.1 percent of the stops of Hispanics, and 1.4 percent of the stops of whites. Contraband other than weapons was seized in 1.8 percent of the stops of blacks, 1.7 percent of the stops of Hispanics, and 2.3 percent of the stops of whites.

Left out of the ABA Journal's coverage is that 92.8% of people stopped were male. Noticing this oversight, we poked around a few other law blogs to see what was going on in their coverage. Specifically we wanted to see what the coverage was like in feminist spaces since all the rage in feminism these days is about how The PatriarchyTM is also bad for men and feminism helps everyone, so come on, put on your This Is What A Feminist Looks Like t-shirt and become an ally! Nevermind that the label "allies" is necessarily describing someone in terms of otherness.

Predictably, Feminist Legal Theory, a blog run by some professors at UC Davis fails to have a single post discussing stop and frisk, though it has plenty of posts on race issues, BLTGI issues, and a couple on animal abuse. Feminist Law Prawfs, a site which counts virtually every Law and Gender/Women/Feminism professor among its contributors, likewise has no stop and frisk post. It does however have posts on racial discrimination, BLTGI issues, and yes, animal abuse. And that's in spite of its slogan, "Nearly all of us root for fairness, not for our own sex."

Of course some people will argue that it's okay to profile men because men are actually more prone towards violent crime -- doing the same for racial minorities is bad though, because the races are equal. (Nevermind that there's a link between poverty and violent crime and between race and poverty.) Stop and frisk is still getting it wrong. Women are stopped only 7% of the time, but are 20% of violent offenders. [BJS, Table 38]

And yet, we've heard no complaints about women being woefully underrepresented in stop and frisk incidents.

Let The Tax Debate Be Held In Secret

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As you may have heard from one of the not-quite-a-handful of media outlets that decided to cover the story, members of Congress working to reform the tax code have decided to conduct their negotiations in secret. [Click here for Daily Show coverage. We removed the video due to autoplay problems.]

Conducting major policy debates in secret strikes many people the wrong way, and rightfully so. Keeping the legislative process in the dark tends to fly in the face of the basic principles of democracy. And yet, we're going applaud our leaders in Washington for perhaps finally making a right call. Not that they'll come up with sensible tax reform, but conducting the process in secret is definitely the right way to do it.

The tax code is full of special interests and any attempt to debate it in public is going to be met with too much resistance, even from people who would gladly accept system-wide reform. If each provision is put up for debate on its own, its supporters will fight for it tooth and nail, and the process quickly becomes gridlocked with no representative daring to offer up his constituents' interests in exchange for someone else's.

The idea that policy debates which involve a multitude of issues none of which seem touchable should be conducted in private is hardly new. It's the same procedure that was used to craft a little piece of law you may know as THE CONSTITUTION. Whole lot of third rail issues there, the big states vs. little states, taxes, individual rights, the national debt, slavery. Members of the Constitutional Convention knew that they couldn't go on record as supporting any small bit of a compromise, but also that the nation would accept the entire package. So, James Madison took notes, and they were kept sealed for 50 years.

Democracy does require transparency, but that is satisfied by the entirety of the law being presented for open debate. All the provisions and compromises are included within the four corners of the bill, and the vote will be televised on the CSPANs. All that's left out is the ability to yell at your congressman for any one particular item.

Is The Legal Market Recovery Resistant?

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Just when you thought there couldn't be more analysis about why the lack of lawyer jobs is no big deal, they pull some more in. Robert Anderson, a professor at Pepperdine Law (45.5% Employment Score, 35.7% Under-Employment Score, $46,680/yr (+9.0% vs 2012-13)) says the problems with the job market may be nothing more than the result of an aging lawyer population. From his blog Witnesseth:

Between 1980 and 2005, the median age of lawyers increased from 39 to 49. [...]

That means that the reported oversupply of lawyers may well result from demographic factors, rather than permanent changes in the legal market. The demographic factors, in turn, probably result from a combination of lawyers waiting longer to retire because of 401(k) accounts decimated during the financial crisis together with the "bulge" of baby boomers working their way through the system.

The bulge of baby boomers should be a very rare occurrence, one which the legal market maybe doesn't need to do much of anything to address. It sucks for people graduating while boomers are hanging on to their jobs, but any solutions would take too long, the problem will be gone before there's any affect. But what about that first explanation, that lawyers are staying in the workforce longer in order to recoup their losses from the recession? The market is back, baby:

 

The Dow hasn't just recovered, it's up nearly 12% over it's pre-recession high. If you add in extra income from staying on the job a few more years, lawyers who were delaying retirement because of the recession should now be much better off than they were before the crash. Why not just cash out now and get the demographics back in line? We suspect two reasons.

First, lawyers may be below-average investors. Many lawyers work in small shops that won't have a formal retirement program, so they're going to be handling their retirement savings themselves. And partners in firms big enough to have retirement programs are probably investing quite a bit beyond their 401(k)s. You know what happens when people who have a lot of faith in their intelligence but less information than professional investors try to play the stock market? They lose. People who play the market are also more prone to pulling their money out during a recession, as opposed to people with generic mutual funds who will tend to just let it ride. So, those lawyers who were too smart for their own good didn't get to reap the benefits of the recovery, and now they have to work an extra decade to make up their losses.

Second, there's the availability heuristic at work. The recession is still fresh in everyone's memory, and if you saw your retirement savings wiped out, it's going to be an especially strong memory. That means the goal posts for retirement have moved. You now need enough to retire on plus enough to cover the losses of another recession. It doesn't matter that retirees should be putting their investments into safer vehicles, or that another recession would be followed by another recovery, so you don't really need to save much extra to prep for it; cognitive biases don't care about that stuff. You're once bit and twice shy, and that's the end of that.

Back before the recession, and even during its early days, the pom-pom wavers talked about how law was recession proof, or at least resistant to the recession. Crimes still get committed, those people need lawyers, and there's more bankruptcies and divorces to make up for slower areas. Of course the proof of the pudding is in the tasting, and as it turns out if your clients have less money they can't pay you as much, and it's not all that simple to go from a deals practice to bankruptcy, or a T&E shop to divorce. There are some industries worse than law during a recession, and some areas of law are counter-cyclical, but whatever resistance the law has to recessions is pretty minimal.

But while the law may not resist recessions well, the number of older lawyers still in the work force indicates that law may be recovery resistant. Baby booms are rare, but recessions? They happen frequently enough that if the legal industry gets any worse at recovering, it might not move fast enough to be back on its feet before the next one hits.

Are we producing more or fewer JDs? Arkansas law prof's answer is sleight of time.

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From the "Leave law school alone!" crowd comes this Bloomberg Law interview with Stephen Sheppard, Associate Dean for Research and Faculty Development at the University of Arkansas School of Law, and a man who may be the inspiration for the character naming conventions used in the Harry Potter series.

We wanted to write about the ridiculous idea he puts forth that if law schools cared more about getting jobs for their students, only BigLaw and the government would exist. But, as we tried to suss out the logic behind that theory, we felt our heads getting too close to 'sploding and just gave up. Instead, we're going to analyze this gem:

As a percentage of either Americans or of university students or of college graduates, the number of people who enter law school has in fact fallen as a percentage whether you look at this from a window of 30 years or 20 years.

Let's first toss out the red herrings. Percentage of university students or college graduates entering law school is completely irrelevant. The comparisons that make sense are number of law school graduates compared to demand for legal services, legal industry jobs, and yes, the first comparison Sheppard made, the national population.

When trying to figure out if we're making too many or too few lawyers, comparison to the total population makes sense, though it doesn't give a final answer. As the federal government passes more laws of greater complexity, the need for lawyers per capita may go up. Policies such as the war on drugs may also increase the need for lawyers per capita. So might something such as growing wealth and home ownership among the middle class, which creates a greater need for lawyers to write wills, or a growing divorce rate and child custody suits. On the other hand there are variables that could decrease the needed lawyers per capita, such as electronic research tools making individual lawyers more effective at their jobs, or increased education among the population and access to online research and DIY guides allowing ordinary folks to handle many routine legal matters on their own. So, lawyers per capita only tells a part of the story, but it's still an important part.

Currently there is one law school grad for every 169 people. In 2010, the ratio was 1:174. [Flustercucked] Remember, Sheppard's claim is that the percentage of people is going down compared to previous decades. In 1993 the ratio was 1:163, and in 1983 it was 1:161. So, how do we rate Sheppard's claim? True.

And damned misleading. Let's take another look at his exact wording:

the number of people who enter law school has in fact fallen as a percentage whether you look at this from a window of 30 years or 20 years.

When we first heard this, it sounded to us like he meant "pick whatever time frame you want, doesn't matter, percentages are going down." The truth is that he means "the percentage is going down only if you make a 20 or 30 year comparison." If you pick any other time frame, the percentage has gone up.

In 2003 the ratio was 1:187. In 1973 the ratio was 1:190. And in 1963 it was an amazing 1:490. But wait, the "window of 30 years or 20 years" comment is even more misleading than that. From 1987-1990, we produced fewer lawyers than we do now, with ratios ranging from 1:171.1 to 1:174.1.

For Sheppard's statement to be true and not misleading, it would need to read something a bit more like this:

As a percentage of Americans, the number of people who enter law school has in fact fallen as a percentage whether you look at this from a window of 30 years or 20 years, but not 10 years, and not 40 years, and also not 23 to 26 years, or 15 years, or 28 years.

Impressed with Sheppard's bit of sleight of hand, we decided to give it a go ourselves. How did we do?

Whether you're talking about Pam Bondi or Megyn Kelly, women with JDs are total babes.

Study Shows Law School Is A Losing Bet For A Whole Lot Of Folks

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We investigate the economic value of a law degree and find the opposite: given current tuition levels, the median and even 25th percentile annual earnings premiums justify enrollment.

Bold claim by Simkovic and McIntyre in their Economic Value of a Law Degree article that has been making the rounds. At the 25th percentile, JD holders still have an earning premium of $350,000 over someone who just holds a bachelors degree. And, with law school only costing $30,000 a year (sticker minus scholarship), that looks like quite a nice payout.

If only that's what law school really costs. At 11 schools sticker price is above $50,000. Though to be fair, at the three most expensive schools the majority of students receive a scholarship, with UC-Davis giving 97% of students a break. But, at the fourth most expensive school, Cornell, the majority of students pay sticker. The majority are also paying sticker at Columbia, Penn and Northwestern (where only 34% get a scholarship). There are another 27 schools charging at least $45,000, and another 36 charging more than $40,000. Only 29 schools charged $30,000 or less. These are the rates for 2011-12, so the numbers are undoubtedly already worse, and we all know what direction the numbers are trending in.

Anyone still paying off their student loans also knows that tuition is not the end of the story, there's that nasty beast called interest. And with legislation working its way through Congress, interest rates are about to get considerably higher. It's theoretically possible for the rates to go down since they're tied to 10 year T-bill rate, but for Grad PLUS loans to hit the statutory cap, the T-bill rate needs to only be 4.1%, and in the last 20 years it spent more time over 6% than it did below 4%, so for this analysis, we'll be using the cap.

And remember, the number we're aiming at is the 25th percentile earnings premium: $350,000.

A student paying $150,000 in tuition will take out $61,500 in graduate stafford loans at 9.5% interest and $88,500 at 10.5%. Assuming a 20 year repayment period, and discounting for a 3% rate of inflation, our student will pay $48,546 in interest on the stafford loans, and $82,608 on the PLUS loans.

Our student also needs to pay for room and board. Counting cost of living as a cost of law school is a bit controversial, so we're not going to do that. What we will do though is count the interest paid on debt-financed living expenses. You need a place to live whether you go to law school or not, but if you didn't go you'd presumably be paying out of pocket and not incurring a mountain of debt. If our student takes out $20,000 a year, he'll end up paying $56,000 in interest on that debt.

But wait! There's more! There's also university fees and books. We'll use the average of Harvard and Seton Hall, Simkovic's alma mater and his current employer, respectively. Fees come out to $899 per year, and books are $1313. Assuming no increase over 3 years (har!), that's another $6,636, and an additional $6,194 in interest payments.

We're also assuming that our law student went to undergrad first (Simkovic compares the JD to stopping with a bachelors, so we think this is a pretty fair assumption). That's not a cost of attending law school, but the interest accrued while in law school certainly is. The national average tuition at a private four-year university is $25,000 per year. A student with $100,000 in undergraduate debt at 8.25% will accrue another $15,750 while in law school (again, deducting 3% inflation). That's not the number we'll use though. The average undergrad debt is about $27,000, and with that amount, our law student just accrues $4,253.

Now let's get out our adding machines and do some adding!

$150,000 - Tuition

$48,546 - Grad stafford interest

$82,608 - Grad PLUS interest

$56,000 - Cost of living interest

$6,636 - Books and fees

$6,194 - Books and fees interest

$4,253 - Undergrad interest

354,237 - Total

Let's remember the initial claim Simkovic and McIntyre made:

We investigate the economic value of a law degree and find the opposite: given current tuition levels, the median and even 25th percentile annual earnings premiums justify enrollment.

The 25th percentile premium is $350,000, so for someone paying sticker at a school that costs $50,000 a year or more, the 25th percentile earnings premium does not justify enrollment.

Fortunately, most of the schools charging that much tend to have employment outcomes that are far above average. Most, not all. Cardozo only has an LST Employment Score of 53.2%, below the national average, and a tuition rate of $51,200 for the 2013-14 school year. Brooklyn has an ES of $48.5% and a 2013-14 tuition of $50,800. New York Law School had an AS of 39.4% and 2012-13 tuition of $49,600 (new tuition has not yet been announced). Chapman has an ES of 33.7% and 2013-14 tuition at $44,400. St. John's has an ES of 49.1%, and a 2013-14 tuition rate of $49,700. Catholic is at 36.6% and $44,000; Loyola Marymount 41.1% and $44,000; Southwestern is 42.6% and $45,200; Hoffstra is 51.2% and $47,000; Pepperdine is 45.5% and $47,000. You get the idea.

 

But wait! It gets worse! There's this little thing called taxes. According to Simkovic and McIntyre:

For low earners, such as those in the 25th percentile, values should be multiplied by 0.75.

That is, assume a marginal federal income tax rate of 25%, so the earnings premium is really only $262,500. For someone paying the high-end price of $354,000, the 25th percentile outcome represents not a positive return, but a loss of $90,000. Ouch!

In fact, taxes take such a big bite out of the earnings premium that law school starts to be a losing proposition for the 25th percentile not at a tuition rate of $50,000, but at $35,000. So... rah rah law school!

 

PS: We left out some significant costs associated with law school, such as the $700-1500 students pay for LSAT prep, $165 to take the LSAT, $165 to take the LSAT again, $2,000-4,000 in bar exam prep courses, the $14,000 in interest you have to pay back on your bar loans, $250 to take the bar exam, and $73 to take the MPRE. You probably also need a nicer suit that you'd have used for interviewing with just a bachelors degree. All these little extras can very easily make law school cost an addition $20,000, chipping away at the percentage of students who will see a positive return on their investment.

Follow @JudgeDillard On Twitter

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Privacy, social media, and legal ethics have been all the rage for the past couple years, with their being a bit of a cottage industry now dedicated to telling lawyers how to keep e-mails private and what not to say on their blogs and Facebook posts. But that's all kinda dull. Of course, most of the fun territory has already been explored so much that it's became passe. An angry e-mail accidentally gets the Reply All treatment? tl;dr. Lawyer has skanky pictures on Facebook? Plz, we were there when those were taken.

We want to explore new territory, and thankfully social media provides a nice way to do it. One of the key features of social media is that it has a sort of currency. On Facebook getting people to click Like or post comments shows your other friends where you stand in the social pecking order. Reddit has upvotes. Twitter has followers and retweets.

We all know that lawyers (and non-lawyers) giving money to judges is a big no-no and can have all sorts of consequences. But what if we strayed from real currency and just used ethereal social currency?

...Dunno. But let's find out!

 

If you have a Twitter account, we want you to follow Judge Stephen Dillard (@JudgeDillard) of the Georgia Court of Appeals. Retweet his tweets, and recommend that your followers follow him.

Phase Two will involve getting into some sort of legal trouble in Georgia. No plans for that yet, but we got our eyes on Uga.

Million Dollar JD Debate: If You Don't Like Their Argument, Ignore Their Facts

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Michael Simkovic is back for round 2 of defending his paper on the $1 million law degree against law school critic Brian Tamanaha. [Question for the people who describe Tamanaha, Campos, et al as "critics" (Simkovic doesn't use the term in his post, but others have in this debate and others): What's the alternative? Someone who does not question the status quo or who believes law schools have reached the Platonic Form and no improvements are possible?]

Here's the point-counterpoint of Simkovic's second post on the topic on Brian Leiter's web blog:

BT Claim 2: Using more years of data would reduce the earnings premium

BT Quote: There is no doubt that including 1992 to 1995 in their study would measurabley reduce the 'earnings premium.'"

Response: Using more years of historical data is as likely to increase the earnings premium as to reduce it

First things first, the "claim" Simkovic says Tamanaha is making is not supported by the quote provided. Put on your LSAT hats and work your way through the logic. The supposed BT claim is More Years = Reduced Premium. But, the quotes says "1992-95 = Reduced Premium." Tamanaha is not claiming that more years will always (or even generally) reduce the earnings premium. He points to 1992-95 specifically because they were bad years.

We'll put that point aside though, and look at the question of whether extending the study to 1992-95 would decrease the earnings premium. Tamanaha argues that lawyers were earning less in 1992-95, and therefor there would be a lower earning premium. Simkovic, quite rightly, points out that law grad salaries are not the only thing at issue here -- we must also look at what other degree holders are earning:

The issue is not simply the state of the legal market or entry level legal hiring—we must also consider how our control group of bachelor’s degree holders (who appear to be similar to the law degree holders but for the law degree) were doing. To measure the value of a law degree, we must measure earnings premiums, not absolute earnings levels.

That makes perfect sense. If the median JD salary drops from $75,000 to $65,000, but the median BA salary drops from $45,000 to $35,000, then the JD has maintained its premium. You're earning less than you would have gotten during a boom year, but in either case you're earning $30,000 than you would have without the JD. We completely agree with this line of reasoning.

The problem is that Simkovic has ignored one premise of Tamanaha's argument:

Had S&M extended their study by just four years—to 1992, covering twenty years in all—they would have found reduced “earnings premium” for law grads. This is because the legal job market suffered a severe recession from 1992 to 1998, while the general economic recession had ended in early 1992. [Emphasis added]

Simkovic is right that the earnings premium can be maintained when salaries go down across the board. And, he'd be right if he said that if you just picked an extra year at random to add to the study, you'd be as likely to increase the premium as to decrease it. Neither of those points address Tamanaha's criticism, which is that in three years, specifically the ones preceding the data used by Simkovic, lawyer salaries were depressed while salaries at large were on the rise.

Finally, in all the talk about what years are the right data to use, one thing has to be kept in mind: As the author of the study Simkovic and his co-author McIntyre bear the burden of proof. It's up to them to argue why their 16-year historical span is a reliable predictor of future economic trends.

A Tale of Two Butthurt Profs

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Two butthurt professors took to the pages of Brian Leiter's blog to talk about just how butthurt they were over all the criticism of Michael Simkovic and Frank McIntyre's article about the economic value of a law degree.

The first butthurt comment comes from Simkovic himself, guest blogging on Leiter's wobsite. He discusses in detail how Above the Law didn't do a good enough job reading and understanding the paper that he and his guest author poured so much time and effort in to. Here's Simkovic's first of six complaints:

ATL Claim: The article doesn’t present any earnings data after 2008 and ignores changes since the financial crisis.

And Simkovic's response:

Facts: We present earnings data from 1996 to 2011.  We also check for trends.  As shown in the figure below, the earnings premiums in recent years are within historical norms. [...]

We note in the article that the most recent college and law graduates in our sample graduated in 2008.  This is because the Census Bureau reports educational attainment at the start of each Panel and the most recent panel started in 2008.  Each panel tracks earnings for several years.

The last class to be studied was the class of 2008, but earnings data continued through 2011, so part of the recession was reflected in the data. Sure looks like ATL's claim that the article didn't present any earnings data after 2008 is flat out wrong.

Yeah, okay. Except that ATL never made that claim. Here is what ATL actually said:

Cutting your study off in 2008, before the market significantly changed, means that your study HAS NO CREDIBILITY. NONE.

ATL's language is a bit ambiguous; it's not clear if they mean the authors didn't look at classes graduating after 2008 (which they didn't) or if they didn't look at salaries after 2008 (which they did). Fortunately, there's this little thing called context. ATL previously quoted a bit from the ABA Journal's coverage of the paper:

The data covers four panels of graduates from 1996 through 2008 and looks at salaries through 2011.

We're pretty sure there some fancy Latin legal phrase used to express the idea that you have to interpret things in context, but we don't have any reference materials within reach, so let's just say dolium volvitur. Here's a screencap of the two sections quoted from the ATL article. A screencap. Singular. Meaning you can see both sections at the same time. That means a reader of ordinary intelligence would understand ATL's complaint to be not that salaries were no looked at post-2008, but that the study did not take into consideration the graduating classes of 2009, 2010, and 2011.

Some of the other criticisms of ATL's piece have more meat to them, but when you title your blog post "Above the Law Needs to Read More," perhaps your first complaint shouldn't be quite so reading impaired.

Before turning to the other butthurt professor, there's one other problem with Simkovic's response we want to point out. This part comes in a discussion about the role of tuition in the article:

Mr. Mystal is correct that the $1 million figure is pre-tax and pre-tuition—the article says as much. However, after deducting taxes, and tuition, and even close to the bottom of the distribution, it appears that a law degree is very often a profitable investment.

How profitable varies from person to person. There are surely a few individuals who do not benefit at all or even do worse. If we had a way to identify these unlucky people before law school we would encourage them to avoid law school. Judging from student loan default rates, this is a relatively rare outcome. Further, income based repayment of loans should substantially mitigate this downside, even as it makes it difficult for us to nail down exactly how much a given person pays for law school.

Simkovic has repeatedly cited law school graduates' low student loan default rates, both to show that they don't struggle as much as other grads with higher default rates, and to argue that law school student loans are a good investment for the federal government (6.8% interest + low default rate = profit! ...plus a very serious question about why the interest rate doesn't reflect the low default rate...).

Simkovic has ignored the very real possibility that law school default rates could be lower because law school grads are more apt to take advantage of deferment, forbearance, and IBR and PAYE programs. Seems pretty reasonable to think law school grads are a bit better at wading through complex contract terms and government regulations, especially when you consider the degree to which law schools are advertising these programs.

When it comes to student loans being profitable for the federal government, again the story doesn't end at default. If you graduate with the average debt of $100,000 at 6.8% interest, you need to earn $156,000 to not be classified as being in "partial financial hardship" and being eligible for PAYE. At $150,000 in law school debt, a grad needs to earn $225,000 a year. Even at the low end, with just $50,000 in debt, a salary less than $87,000 makes you eligible for monthly payments. The default rate might be low, but so is the number of people the government is collecting 6.8% interest from.

A law school grad with $100,000 in debt needs to earn $59,000 a year just to pay the interest on the loan. Below that amount, the principle is never touched. So what happens at the end of 20 years if you're right at that threshold? The government collects it's 6.8%, which comes out to a total of $83,000. It then forgives the principal of $100,000. Doesn't look like such a good investment now, but please Mr. Simkovic, tell us more about how important the low default rate is.

 

Moving on, the second butthurt professor is the philosophy professor of law himself, Brian Leiter. He complains that The New Republic ran an article about how to fix law schools without consulting any real experts. The six people TNR talked to here, as Leiter describes them:

[O]ne gossip columnist who went to law school, one longtime law professor, two journalists who went to law school, one "journalist moonlighting as a law professor", and one in-house counsel. In short, they asked no experts on legal pedagogy, the economics of legal education, or the legal profession, just a group of pontificators (plus one lawyer) with varying degrees of familiarity with law schools.

The "gossip columnist who went to law school," is ATL's David Lat. Leiter leaves out of his description that Lat also worked at a clerk for a judge on the Ninth Circuit Court of Appeals, as an associate at Wachtell, and as a federal prosecutor.

The longtime law professor is Alan Derschowitz. He was a clerk to the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, then to SCOTUS Justice Goldberg (yeah, never heard of him either, but whatever). After clerking, he went into academia, but has also practiced law off and on (seems to be mostly off), working as a criminal appellate lawyer on some high profile cases.

The "two journalists who went to law school," are Mike Kinsley, TNR's editor-at-large, and Dahlia Lithwick, a senior editor and legal correspondent for Slate. Kinsley graduated from Harvard Law in the 1970s and has been in journalism ever since. Lithwick clerked for a judge on the Ninth Circuit, and also practiced family law for a short time (her bio isn't clear on for how long, but likely no more than 4 years).

The "journalist moonlighting as a law professor," is Paul Campos, and the "moonlighting" bit is supposed to be a dig at Campos for having a blog.

Lastly, the in-house counsel is Mark Chandler of Cisco Systems. Leiter fails to mention that he is on the Dean's Advisory Committee at Stanford Law School.

The "varying degrees of familiarity with law schools" includes for each of the "pontificators" having actually attended law school. And while he doesn't like that "journalist moonlighting as a law professor," Leiter himself isn't even a real law professor. He is a philosophy professor who happens to work at a law school and teaches Evidence for two months of the year. His CV is filled with publications on Neitzche, Legal Realism, and Legal Positivism, but light on law (his writing on Evidence is more about epistemology). He is nothing more than a very highly paid pontificator, and one that isn't even recognized by other pontificators (ie: philosophy professors) as being particularly good at what he does.

[Editor's Note: An earlier version mistakenly said Leiter had no legal education and does not teach law. He holds a JD from Michigan, regularly teaches Evidence during Chicago's 2 month Winter term.]

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