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

Time, Place, and Manner

...Should have some links here or something.


Constitutional Daily

We already figured out how to consummate it online...

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Yesterday, in the midst of a billion stories about the US News law school rankings (and we helped!), the ABA Journal ran a story about how more and more people are getting married on the internet. Trust us, there’s a connection.

It’s apparently becoming increasingly popular for foreign marriages. Marriage via the internet is sort of like a marriage by proxy. According to the ABAJ, some critics are concerned that this type of marriage will be used by human traffickers, who will use them to bring women into the country and then force the women into prostitution. And we all know the fierce stance the ABA is taking on human trafficking these days. (If you don’t know, it’s anti-trafficking.)

And it just wouldn’t be a legal issue without an inane opinion from a law professor. Here comes Michigan State University law professor Adam Candeub with some reservations:

Part of the reason for having the two people come and appear before a priest or a judge is to make sure it is a freely chosen. There are some problems with willy-nilly allowing anyone around the world to marry.

First, we’ve seen the Princess Bride, and there was absolutely no checking by the priest that Buttercup was marrying Humperdink because she “freely chose” it. Sure wuv, twoo wuv is nice, but when push comes to shove, we’re all too willing to jump to man-and-wife, plans to murder your partner in that dweam within a dweam notwithstanding.

Second, why don’t you tell us how you really feel, Adam? People shouldn’t be allowed to marry “willy-nilly”? If you haven’t noticed, the mood of the day, especially common among the educate elite, is towards marriage freedom. (And way to go Colorado!) Marriage is an agreement between two consenting adults, and that’s pretty much it. Not between two consenting adults who have courted for a suitable length of time and have the consent of both parties’ parents. Candeub would have done more to undermine the marriage between Jane and Bingley than Darcy ever did.

Here’s a question for you, Professor. If you’re so concerned about people making major decisions with life-long consequences willy-nilly, and worst of all online, why don’t you ask Michigan State’s admissions office to require students to come on campus to accept their admissions offer and pay their first semester’s tuition? You wouldn’t want people enrolling in law school willy-nilly, especially considering that they will be paying back their loans for much longer than the average marriage lasts, and have more debt than the typical divorce settlement value.

And law school is hardly the biggest thing you can commit to online or by proxy. People are getting their auto insurance online now, and their health insurance, and auto insurance. You can form a corporation by mail, a process so common that there’s a whole industry of registered agents to stand in for absentee owners. We have the whole ESIGN Act governing electronic agreements, and for good reason. It’s not just $7 Netflix payments and $9 Kindle book orders being made in abstentia. Corporations are largely governed by proxy votes, and billion dollar deals can be closed by fax. Whatever the agreement is, long ago we realized that what matters is the intent of the parties to be bound; the form of that agreement is irrelevant:

It makes no difference whether that operator writes the offer or the acceptance . . . with a steel pen an inch long attached to an ordinary penholder, or whether his pen be a copper wire a thousand miles long. In either case the thought is communicated to the paper by the use of the finger resting upon the pen; nor does it make any difference that in one case common record ink is used, while in the other case a more subtle fluid, known as electricity, performs the same office.

That’s from Howley v. Whipple, a case that went before the New Hampshire Supreme Court in 1869. It’s still good law. The cat is out of the bag, professor. What makes sense is not trying to get in the way of online marriages, but figure out how to make the system better. If you’re worried about coercion, require a judge to sign off on the marriage on both ends. If you’re worried about people getting married without really thinking through what that means, then learn to cope, because it’s 2013 and we’re allowed to make bad decisions with our lives. The number of people relying on US News to make law school enrollment decisions is proof of that.

Bob Morse "Explains" US News Rankings

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Here's the interview Bloomberg Law did with Bob Morse about the new US News law school rankings. The whole thing is pretty sad, and Bob comes across basically like a restaurant owner on Kitchen Nightmares. Not one of the really aggressive ones that yells at Gordon Ramsay, but one of the dopey ones who just assumes everything is awesome despite the impending collapse of the whole thing. Here, take a watch:


Here's what we learned:

Bob doesn't think rankings influence law school behavior, despite pretty much every law school admitting that their entire business model is designed around increasing their US News ranking. Hello merit-based scholarships!

The T14 is pretty much the same.

Bob thinks that jobs that require bar passage are just as desirable as jobs where a JD is only a helping hand on the application, despite schools with higher JDA job placement also having a higher percentage of students looking for a job other than the one they already have.

Bob won't say how other jobs are weighed. You'll just have to take his word for it that the methodology is sound, despite, like, you know, everyone saying that it's completely bogus without even knowing what's behind the curtain.

Finally, we learned that Bob is just this kid plus 60 years:

The Great Law School Brain Drain

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The new US News law school rankings are out, and like we saw last year, LSAT and GPA numbers are generally down. LSAT numbers are getting the worst of it, as is to be expected since the numbers are scaled and compare only prospective law students.

Data for All Schools

#1-50 Data

#51-100 Data

#101-144 Data

Ranks Not Published Data

Synopses follow. Check back throughout the day as we post data for the remaining schools.


Overall Synopsis

Number of schools with a gain in both LSAT 25 and 75: 14

Schools with a loss in both LSAT 25 and 75: 78

Number of schools with a gain in both GPA 25 and 75: 43

Schools with a loss in both GPA 25 and 75: 68


Average LSAT 25 change: -0.81

Average LSAT 75 change: -0.43

Average GPA 25 change: -0.023

Average GPA 75 change: -0.011

This is the second year in a row that all four numbers have dropped (and only our second year checking, so who knows when it started).


18 schools had no loss in any of the four statistics. 4 schools posted gains in each of the four (Stanford, Tulsa, St. Louis, and Chapman). 2 schools had no loss but also no gain (Barry, and Florida A&M).

By comparison, 32 schools posted a loss in each of the LSAT 25 and 75 and GPA 25 and 75.

Last year, only 1 school had an LSAT 25th percentile of 143. Now 5 do, and one, Phoenix, has an LSAT 25 of 142, the 18th percentile of LSAT test takers.



Synopsis of Schools Ranked 1-48 (52 schools, because of a 5-way tie at 48)

LSAT 25th and 75th Percentile Changes

Number of schools with a gain in both LSAT 25 and 75: 3

Number of schools with a gain in 1 of LSAT 25 and 75: 5

Number of schools with a gain in one and a loss in the other: 6

Number of schools with a loss of 1 of LSAT 25 and 75: 13

Number of schools with a loss of both LSAT 25 and 75: 18

Number of schools with no change: 7

Average 25th Percentile Move: -0.77

Average 75th Percentile Move: -0.037


GPA 25th and 75th Percentile Changes

Number of schools with a gain in both GPA 25 and 75: 14

Number of schools with a gain in 1 of GPA 25 and 75: 2

Number of schools with a gain in one and a loss in the other: 19

Number of schools with a loss of 1 of GPA 25 and 75: 2

Number of schools with a loss of both GPA 25 and 75: 13

Number of schools with no change: 2

Average 25th Percentile Move: -0.010

Average 75th Percentile Move: +0.002


The biggest loser among the top 50 was the University of Georgia, which dropped -4/-1 for its LSAT 25/75. It's LSAT 25 dropped from 162 to 158, and remember that since the LSAT is on a bell curve, the further you go, the more significant a single point change is. That change represents a drop from the 86th percentile to the 75th. Georgia at least compensated for this loss by shoring up its GPA stats, with a 0.03/0.06 gain.

The school posting biggest across the board losses was BYU. It had a loss of -2/-2 for LSAT scores, and -0.11/-0.06 for GPAs.

The biggest GPA loss was at George Washington, with a -0.13/-0.12, and with its LSATs remaining the same.



Synopsis of Schools Ranked 53-98 (49 schools, because of a 4-way tie at 98)

LSAT 25th and 75th Percentile Changes

Number of schools with a gain in both LSAT 25 and 75: 5

Number of schools with a gain in 1 of LSAT 25 and 75: 6

Number of schools with a gain in one and a loss in the other: 4

Number of schools with a loss of 1 of LSAT 25 and 75: 15

Number of schools with a loss of both LSAT 25 and 75: 12

Number of schools with no change: 7

Average 25th Percentile Move: -0.35

Average 75th Percentile Move: -0.39


GPA 25th and 75th Percentile Changes

Number of schools with a gain in both GPA 25 and 75: 11

Number of schools with a gain in 1 of GPA 25 and 75: 4

Number of schools with a gain in one and a loss in the other: 10

Number of schools with a loss of 1 of GPA 25 and 75: 3

Number of schools with a loss of both GPA 25 and 75: 21

Number of schools with no change: 0

Average 25th Percentile Move: -0.0251

Average 75th Percentile Move: -0.0184


Biggest loser from this bunch is Missouri, with a -4/-2 LSAT, and -0.08/+0.04 GPA. The 2 point drop in Missouri's 75th LSAT of 161 to 159 represents a change from the 83rd to 77th percentile. The 25th LSAT drop from 156 to 152 is a change from the 67th to 52nd percentiles, a serious decline in admissions standards. You used to need to be in the top third to get in. Now you just need to be in the top half.



Synopsis of Schools Ranked 102-144 (47 schools, because of a 5-way tie at 144)

LSAT 25th and 75th Percentile Changes

Number of schools with a gain in both LSAT 25 and 75: 3

Number of schools with a gain in 1 of LSAT 25 and 75: 7

Number of schools with a gain in one and a loss in the other: 3

Number of schools with a loss of 1 of LSAT 25 and 75: 5

Number of schools with a loss of both LSAT 25 and 75: 28

Number of schools with no change: 3

Average 25th Percentile Move: -1.04

Average 75th Percentile Move: -0.55


GPA 25th and 75th Percentile Changes

Number of schools with a gain in both GPA 25 and 75: 9

Number of schools with a gain in 1 of GPA 25 and 75: 0

Number of schools with a gain in one and a loss in the other: 15

Number of schools with a loss of 1 of GPA 25 and 75: 7

Number of schools with a loss of both GPA 25 and 75: 16

Number of schools with no change: 0

Average 25th Percentile Move: -0.030

Average 75th Percentile Move: -0.017


The single worst LSAT 25 drop we've seen since UGA, Suffolk went from a 152 to 148, or 52nd percentile to 36th. You used to have to be in the top half, now you only need to be in the top third. Ouch!

Several other schools saw some nasty drops, but we're giving the biggest loser award for this group to Arkansas - Little Rock, with a -3/-1 LSAT drop, and a -0.13/-0.15 drop in GPA 25/75. Brutal, yet they jumped 6 points in the US News ranking. No accounting for taste.



Synopsis of Schools With Ranks Unpublished (46 schools)

LSAT 25th and 75th Percentile Changes

Number of schools with a gain in both LSAT 25 and 75: 3

Number of schools with a gain in 1 of LSAT 25 and 75: 5

Number of schools with a gain in one and a loss in the other: 3

Number of schools with a loss of 1 of LSAT 25 and 75: 12

Number of schools with a loss of both LSAT 25 and 75: 20

Number of schools with no change: 3

Average 25th Percentile Move: -1.35

Average 75th Percentile Move: -0.43


GPA 25th and 75th Percentile Changes

Number of schools with a gain in both GPA 25 and 75: 9

Number of schools with a gain in 1 of GPA 25 and 75: 5

Number of schools with a gain in one and a loss in the other: 11

Number of schools with a loss of 1 of GPA 25 and 75: 0

Number of schools with a loss of both GPA 25 and 75: 18

Number of schools with no change: 3

Average 25th Percentile Move: -0.029

Average 75th Percentile Move: -0.013


We've got two contenders for biggest loser among the unranked schools.

Western New England saw a -3/-4 LSAT 25/75 drop. The 25 score dropped from the 48th percentile to the 36th, and the 75th dropped from the 67th to 52nd. So, it used to be that to be in the top quarter of its class, you needed to be in the top third of applicants. Now you just need to be in the top half. But this awful LSAT plummet was at last not too terrible exacerbated by GPAs, which dropped a comparatively modest -0.01/-0.07.

Our other contender is Ohio Northern, with a -4/-2 GPA drop, sending its 25th rank from 149 to 145, from the 40th percentile to the 26th. Ouch! But just to add injury to injury, the GPAs here dropped an astonishing -0.22/-0.21. Someone get Ohio Northern some Quilted Northern!

I didn't say "I got a gun!" I said "Omanomnom!"

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Surely you remember the 7 year old who got suspended from school earlier this month for trying to shape his pop-tart into a mountain, but then his teacher thought it was a gun and then he got suspended for two days because stupidity. I mean, zero tolerance. Actually, I mean both.

And if you haven’t heard of that story, then who knows how you found us here. But, go ahead and google any combination of the words “pastry,” “gun,” and “kid,” and enjoy the 2.5 million results you’ll get.

Zero tolerance is like a dumbed down version of strict liability, which is already pretty dumb to begin with. But at least with strict liability offenses concepts like prosecutorial discretion, mitigation, leniency, and exercising thought and common sense still have their place.

Zero tolerance is supposed to be a school’s way of showing how tough it is, but in reality it’s abdication of responsibility. Making judgment calls can be tough, sometimes you make the wrong choice, and when you do make the wrong choice you get angry parents yelling at you. So, rather than having a tough job with consequences, zero tolerance policies allow schools to preemptively tie their hands and punish everything without discretion. There will still be angry phone calls from parents, but the administrators can just say “Sorry, nothing we can do, zero tolerance, blah blah, Dr. Strangelove, blah blah, stop worrying and learn to love sequestration.”

Fortunately, Maryland State Senator J.B. Jennings decided to make a judgment call.  Jennings has introduced a bill to the Maryland Senate that would ban school leaders from suspending students who make the shape of a gun with their fingers or food, or students who draw a gun on paper.  Jennings says if the gun making is done in a violent manner, then things can be taken to the next level. He hopes the bill will introduce some common sense to the state education system. The bill is headed to the Education Committee, and if it passes there, it will go to the full Senate for a vote.

None of us here at ConDaily being parents (that we know of), we aren’t especially familiar with the real life ramifications of having your seven year old get a two day suspension. But according to Jennings, parents have called his office about this issue repeatedly, with concerns about their child’s permanent and academic records. Which seems pretty valid, given that the current education system in Maryland is one that views poorly expressed food art as a weapon.

The idiocy of the whole situation has been covered ad nauseam, so we won’t beat a dead toaster pastry. But, the fact that the idiocy of the whole situation has escalated so much as to prompt a bill to stop this kind of idiocy is pretty absurd.

But, we support Jennings in his fight for the rights of kids who play with their food, and to acknowledge that no amount of strategic bite placement can turn a Pop Tart into a Pop a Cap in Yo Ass Tart.

Women: Find your voice, then use it to say "make it a double"

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Being overworked and underpaid are stressing people out at work, reveals a shocking survey from the American Psychological Association.  One-third of employees experience chronic work-related stress, and it’s worse for women than men.

27% of men feel underpaid, compared with 38% of women; while 30% of men and 32% of women say they don’t have enough opportunities for internal advancement. And in case you don’t like numbers, here’s a handy little companion graphic.

So what? Who hasn’t felt overworked, underappreciated, underpaid, stressed at work? Well, part of the problem is that chronic stress harms productivity, mental clarity, short term memory, decision making, and moods. And it seemingly affects women more so than men, though there is of course a question of whether men and women differ in how they report stress. Either way though, whether women have more stress or just report it more often, you’re going to have to deal with more bitching from your girlfriend. And if she’s less productive at work because she’s stressed, she’s just going to get more stressed. Lucky you.

According to the study, women’s stress is on the rise because more families are relying on women’s earnings. But, the article tells us that employed wives’ contributions to family earnings have hovered at around 47% for the last 4 years. So, that doesn’t really explain the recent rise in stress. Also problematic: only keeping track of “employed wives.” There are plenty of employed women whose families depend on their income that aren’t wives, past or present. The study also suggests that work-life balance is a particular struggle for these women. Guess all the “employed wives” aren’t splitting the chores with their “employed husbands.”

Presuming chronic stress at work is unavoidable, what can be done about it? The article has 0 solutions for men (whatever, dudes are less stressed anyway) and two for women. First are the clichés encouraging women to be more assertive, “give yourself a voice,” “speak up for yourself,” “stand up for behavior you see as unfair.” Well, that’s better than saying women can fix stress at work by talking to other women who are stressed at work, or by encouraging each other to be less stressed. Then again, pretty much anything is better than those. Except maybe a solution that could directly lead to more stress, such as, oh, I don’t know …speaking up, standing up for yourself more often, and engaging in other proactive ways of getting into more confrontations. Not that you shouldn’t stand up for yourself, but let’s not pretend doing so isn’t stressful.

The second solution comes implied, by way of several “success story” anecdotes of women who fixed their chronic work stress. They quit their jobs. Women who reduced their work stress through suicide were not interviewed for the story, though it’s presumable that they had the same level of work stress reduction.

So, if you’re a woman and you’re stressed at work, either “find your voice” or quit your job. And then hope stress doesn’t show up at your next job. Or just perpetually hunt for new jobs, so you can always quit when things get stressful. And if you can’t quit, well, uh, sorry bout ya.

This study is like every “problem with women in the law” piece that I’ve come to loathe so much. It identifies a problem, discusses it enough to have the appearance of depth with no real analytical insights, and then does little or nothing to suggest how to deal with the problem. Or, maybe I’m just one of those stressed women whose mental clarity has been compromised and I’m too moody to notice.

And since we don’t like to complain about something too much without providing a better solution than the non-solutions we’re complaining about, how about not trying to reinvent the wheel? Women are facing more stress at work largely because they’re at work more than they used to be and are finding work in increasingly stressful fields. They’re less likely to be stay-at-home moms, and there’s a better chance they’ll be the lawyer than the secretary than there used to be. So why not take a page from the playbook of the team that’s been dealing with work stress for a lot longer: men.

They don’t “find their voice,” and they don’t often quit. They have happy hours. Sometimes at noon.

But David Yellen Says They Must

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David Yellen is the Dean of Loyola Chicago.

David Yellen is a member of the ABA's Task Force on the Future of Legal Education.

In an op-ed written for Above the Law, David Yellen said, "Law schools must fully comply with the ABA Standards and Rules of Procedure for Approval of Law Schools to receive or retain accreditation."


Law School Transparency conducted a survey of law school websites more than 4 months after the ABA revised Standard 509.

In a report covering the findings of its investigation, Law School Transparency said, "Of the 199 ABA-approved law schools, 78.4% (156/199) did not meet the expectations set forth by Standard 509."

Standard 509 is among the ABA Standards and Rules of Procedures for Approval of Law Schools.

In an op-ed written for Above the Law, David Yellen said, "Law schools must fully comply with the ABA Standards and Rules of Procedure for Approval of Law Schools to receive or retain accreditation."

David Yellen is a member of the ABA's Task Force on the Future of Legal Education.

David Yellen is the Dean of Loyola Chicago.


David Yellen says, "Law schools must fully comply with the ABA Standards and Rules of Procedure for Approval of Law Schools to receive or retain accreditation."

Law School Transparency says, "Of the 199 ABA-approved law schools, 78.4% (156/199) did not meet the expectations set forth by Standard 509."

David Yellen is the Dean of Loyola Chicago.

David Yellen is a member of the ABA's Task Force on the Future of Legal Education.

Frank Wu: Most Misguided Person in Legal Education

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Frank Wu was recently deemed by his peers to be the most influential person in legal academia. Too bad when it comes to improving legal academia he's got his head up his ass. Here he is writing at the Huffington Post about the tension between transparency reform and cost reform:

Everyone wants us to be transparent, while lowering our costs. Those goals, as is true of many human desires we feel simultaneously, are not highly compatible. Like elegant product design, transparency turns out to be pricey. Specifically it requires that we build an apparatus to find the information, organize it, verify it, submit it, and then track the trends that are revealed.

The other day, I spent the lunch hour in our cafe to chat with students. A nice fellow, a first-year student, came by to meet me. The only subject he wished to bring up was ice cream. He wanted to know if the cafe could install a machine as he recalled from his undergraduate days elsewhere, so he could enjoy soft-serve ice cream.

As I explained to him, I have nothing against ice cream. If we can make a profit as the vendor, then we would be delighted to offer ice cream. But if we cannot do so, then our strategic plan does not call for ice cream.

First, your attitude of "we'll be transparent if it turns a profit" is ridiculous. Transparency is an ethical obligation (and increasingly a regulatory requirement), and deserves more than a simple cost/benefit analysis.

Second, your school already has a NALP report. It's in your possession right now. You can publish it on your website FOR FREE. YOU CAN PUBLISH YOUR NALP REPORT FOR FREE. YOU CAN PUBLISH YOUR NALP REPORT FOR FREE RIGHT THIS VERY FREAKING MINUTE YOU INSINCERE ASSHAT.

Now that we know Wu's head is so far up his ass that the lump in his throat is his nose, let's look at Wu's explanation for why law school is so damned expensive these days:

The greatest change has been the embrace of clinical legal education. By "greatest," I mean the most sizable and the most worthwhile. Similar to the model of clinical medical education, clinical legal education is the best means by which we prepare students for practice. It has been so successful we as a profession might well be on the cusp of requiring it for every graduate. No med student graduates without examining a few actual patients.

The expense of clinical legal education can be calculated in straightforward terms. A professor in a doctrinal class, such as the first-year required curriculum of civil procedure, criminal law, property, contracts, and torts, can lecture to a hundred students at once. That is not ideal, but it is not uncommon. A professor in a clinical class, supervising student attorneys who are representing real people in real cases, cannot train more than ten students at once. That's if she cares about her responsibilities both as a teacher and a lawyer.

It happens that the "podium" professor as they are called likely makes more money than her clinical counterpart, though not by much. Thus the difference is more than an order of magnitude. Once you count the overhead required for an actual legal office, the clinical course requires ten times as much money. There are new technological advances that will alleviate some of that.

Pause for a moment on this math. If we want clinical legal education, we will need to spend much more to provide it. As curmudgeons tell the young, this is called a choice.

If only law schools were actually making a choice. They're not. When law schools expand their course offerings, well, that's just it. They expand course offerings. They never engage in choice. They don't say "X course would be great, in fact, better than Y, which is virtually useless, so let's replace Y with X." No, they say "X would be great, let's add that, and replace $$ with $$$."

Yes, clinical education is expensive. A whole lot more expensive than externships, but let's put that issue off for another time. A class with 10 students is more expensive than a class with 100. No debate there. And reformers do often ask for more of those 10 person classes. So let's look at what other expensive seminar courses UC Hastings is offering:

Accountability in International Human Rights Law - It's often joked that the bulk of law students enroll hoping to practice international human rights law, but that this of course is a practice area which is virtually non-existent. Apparently Hastings didn't get the joke.

Asian Pacific Americans and the Law - Truth is America doesn't have a great track record with Asian immigrants, what with the railroads and internment camps and all that. But, these aren't really contemporary legal issues, and the class would be better placed in a history department. There are immigration issues for Asian Americans, but that topic isn't in the course description.

China and the International Legal Order - This is a class that discusses China's role in the UN, WTO, and how it views trade and sovereignty issues. Perfect for the exactly 0 students who go on to become ambassador to China. Useless for the rest.

Critical Race Theory - Almost every school offers some version of this. And they pay a very expensive law professor for it instead of a much cheaper French postmodern literary theorist, and if at any point you discuss Foucault, Derrida, Lacan, or Baudrillard, that's really who should be teaching this class because you're using "critical" to mean "obfuscated beyond comprehension" and "theory" to mean "fashionable nonsense."

Film and the Law - It's not a class on the publication of private facts in documentaries. It's exactly what you think it is.

Law of the Human Body - Whether we should be allowed to enter into a kidney exchange is a really interesting issue. You can cancel the class and buy everyone interested in it a copy of Leo Katz's Why the Law is So Perverse instead.


UC Hastings does offer a number of practice-oriented seminars and simulation courses. And that's great. But remember, the operative word here was choice. Hastings isn't making a choice, it's just piling on every class a professor has an interest in and passing the increased costs along to the students. And that's basically the attitude every other school takes. "Oh my gorsh! How can you say that a wills drafting seminar is more important than a legal issue that isn't handled in the courts but rather by top-level political officials who are more beholden to voters than legal principles? Better offer both!"

Learn to make the hard choices, Dean Wu. Take the soft-serve ice cream off your course catalog until you can afford it. And for the love of God, publish your damn NALP report or shut the hell up about how expensive it is to become transparent.


Just for good measure, we saved the most ridiculous Hastings class for last:

Research Seminar on Career of Roger Traynor - "The student work will contribute to a biography that Professor Hazard is exploring in cooperation with Michael Traynor, the Justice's son and himself a prominent lawyer, and with Professor Emeritus James McCall of Hastings." You get to pay for the privilege of helping your professor write a book that will carry his name, and not yours, and where he'll collect royalties, and not you. Not only is this worthless as a law school class, it is incredibly exploitative and if law schools had serious ethical guidelines the professor would be sacked, along with whoever approved this class.

Guess it takes the most influential person in legal academia to pull off a system where students pay to be research assistants.

Brian Leiter is pretty much wrong about everything when it comes to rankings

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Imagine University of Chicago philosophy professor of law and self-styled member of the American peerage Brian Leiter reposted on his blog his criticism of the US News and World Report Law School rankings, the most easily criticized ranking system our nation has had since the President and Vice President were elected separately, and that he got the criticism nearly entirely wrong. Imagine no more! Here comes the breakdown:

1.  Contrary to what one sometimes hears, it is clear to me, and I imagine any other informed observer of school evaluations, that the reputational surveys are the one component of the U.S. News ranking that actually keeps the results tethered to reality.  Unfortunately, as Professor Stake of Indiana has shown, the superficial survey method U.S. News employs is increasingly producing an echo chamber effect, with the reputation of a school essentially tracking the overall rankings from prior years by U.S. News.  In order to minimize that effect, I suggest you switch to an on-line survey system with academics (your response rate from academics is already quite high, and I imagine that for an on-line survey it will be even higher), in which evaluators are presented with concrete information about each school, rather than simply a school name:  e.g., a current faculty roster, numerical credentials of the student body, a list of distinguished alumni (let the school provide a list, limited to 50 names, say), and so on.   Ask academics to evaluate the scholarly and professional excellence of the school, not simply the "reputation" they associate with a name.

It's clear to anyone who actually talks to prospective students, the intended audience of the US News rankings, despite how much Leiter thinks they exist for his own personal glorification, that the survey of reputation among other law professors is the most absurd, least grounded in reality part of the whole ranking. (That is if you use a weighted measure. Spending per capita is more absurd, but only a small part of the ranking. Peer reputation is 25% of the whole damn thing.)

50 names of professors and distinguished alumni? Outside of a few super-elite schools that horde brand-name professors and produce Senators and Supreme Court Justices, the median number of names you'd (or a tenured professor) would recognize from the list is 0. And even if you do recognize someone's name, unless they're writing in the same field as you, you're going to have no idea what they've done with their career in the last 5 or 10 years. Arthur Miller at NYU, incredibly famous (not as famous as the other Arthur Miller, but still, famous among law profs) -- any idea what he's written lately? Probably not. NYU gets some reputation points for having him, despite the fact that he hasn't published a law review article since 2006, and only has 2 published in the last 15 years.

So on top of not having a clue what these people are even doing, when you do know what they're doing what they're doing is the wrong thing to evaluate them on because it's based on scholarship, and prospective students really don't care about that. They want professors who know how to teach, and it's highly unlikely that any professor filling out the USN survey has spent the 10,000 hours it would take to sample each of the 200 schools' 50 top professors.

2.  To the extent you continue to employ data self-reported by the schools, you really must undertake more aggressive audits of the data.  This year--to take the most notorious example that has already attracted widespread attention--the University of California at Berkeley claimed an astounding 99% of its students employed at graduation, a fact to which Professor Lindgren of Northwestern has already called attention.   In prior years, Berkeley has reported (going backwards by year) 97.2% employed at graduation, 74.4%, 89.8%, 88.7%, 96.8%,  and 93.2% .  Berkeley is a state school, subject to open record requirements.  Have you assigned a reporter for your magazine to investigate anomalous data reporting by schools?  The integrity of the enterprise surely demands an occasional follow-up investigation.

It did seem that Berkeley was fudging the numbers, and some sort of auditing it necessary to ensure the integrity of the data. Where Leiter goes off the rails is that when Law School Transparency filed a complaint with the ABA about a school publishing false employment data Leiter called the complaint "frivolous." And how did LST discover the fraud? They analyzed some publicly available data that contradicted Rutgers-Camden's marketing claims and then ...filed an open records request.

So why the change of heart about the importance of following up on employment claims? Two likely explanations.

First, professors love the rankings because it gives them a sense of pride. They need to protect the rankings to keep their egos puffed up. Employment stats that are presented to prospective graduates don't affect the rankings, and complaining about them hurts the profession as a whole. Can't have that.

Second, Leiter is allowed to criticize his peers. But middle-class members of the professions engaging in the same criticism? Insolence.

3.  Since what can only be facetiously called the "objective" data that schools self-report is the source of most of the egregious trickery and deceit that renders the results dubious, why not take steps to reduce your reliance on this data?  (That was a primary consideration in the Canadian law school rankings I designed for MacLean's.)  Eliminate expenditures altogether:  that alone would put a halt to the worst offenses.  What schools spend on utilities and secretaries and landscaping has nothing to do with anything.  Per capita expenditures systematically penalize larger schools for their economies of scale and reward inefficiency:  there is simply no denying this.  Even expenditures on faculty salaries is a very poor proxy for faculty quality, and would be, in any case, redundant upon well-done reputational surveys or citation studies, which would provide a direct measure.

The expenditure ranking is pretty ridiculous. What's stupid here is that Leiter doesn't know what the word "objective" means. Being fraudulent is not the same as not being objective. Also, there's not any evidence that schools mis-report their expenditures. Leiter could have filed an open records request to see what the actual numbers are, though he didn't. But, we've never heard of such a complaint. Instead, the complaint is that schools actually are spending more money to boost their rank. Students would love it if they just lied instead of increasing tuition.

And again, reputational surveys would not provide a direct measure of faculty quality. By definition a reputation is an indirect measure. And reputational surveys of faculty quality are, as previously said, not even really surveys of quality at all.

You should also eliminate the self-reported employment data, which is, as you well know, a work of fiction:  it bears some resemblance to reality, but it is mainly a work of the imagination.  Substitute data in the public domain, like the representation of school graduates as associates at leading law firms nationwide, or in federal clerkships.  Eliminating expenditures data, and substituting public data on employment success for self-reported employment statistics, would immediately increase the credibility of the results, and would get U.S. News out of the business of rewarding trickery and deceit.

The problems with the USN employment data isn't that it's a work of fiction, it's that it's a poorly crafted work of non-fiction. USN simply lumps all jobs together, part-time, short-term, non-professional. Doesn't matter, a job is a job. Using something like the LST Employment Score methodology would be a vast improvement, counting only full-time, long-term jobs requiring bar passage, and not counting solo practices. Are some schools lying on the data they send to the ABA? Maybe, and there should be audits, but narrowing what counts as a real job means you at least have to really commit fraud to game the system. Right now schools can just hire someone part-time for a couple weeks in February and count them the same as a BigLaw associate. No fiction, just a bad metric.

Leiter's alternative though is perhaps even worse than the current system. Only 45 schools send 10% or more of their class to firms with 101 or more attorneys (and that's a very liberal definition of BigLaw). Only 16 send 30% or more. 51 schools send 3% of more of their class to federal clerkships, and only 8 send 10% or more.

The BigLaw+Federal Clerkship number is important for figuring out how good a school is, but it's hardly the only important metric. It's basically only important for figuring out which of the elite schools is the most elite, which is of course the only thing that Leiter really cares about. But if you want to know whether to go to Alabama or Samford, the scores are 18.3% vs. 12.2%. They're just not the most relevant numbers for people working in Alabama, and the same is going to be true for most states that aren't dominated by a major legal market. If you compare Alabama and Samford's Employment Score, you get 71.3% vs. 59.5%, and the  Under-Employment Score comparison is 7.9% vs. 19.6%. Those are the numbers (along with salary data) that matter to people making that choice.

So there you have it. If you actually want to fix the US News rankings, you need to approach it with the eye of someone applying to law school. That generally means a focus on employment outcomes, and ditching the national scale because no one needs to know if how Arizona compares to Fordham. Or, you can take Leiter's approach, which is basically to make US News a more reliable gauge for professors to compare their relative prestige.

What's Eating Brian Leiter?

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Over the weekend, Chicago Law professor Brian Leiter posted what we think can best be described as a rather mild piece of hate mail. First, a wee bit of back story. Paul Campos wrote on Inside the Law School Scam that the phrase "thinking like a lawyer" is pretty empty. Brian Leiter then wrote on his blog a short post titled "Paul Campos admits he doesn't "even [know] what it means" to think like a lawyer." Then the e-mail came:

You’re a “Law and ______” Professor, not a lawyer. How would you know how to ‘think like a lawyer’?

This is hardly a unique criticism of legal academics, and it's especially fair when it comes to Leiter. He does teach Evidence, but his area of scholarship is purely philosophy. Here's his list of book titles from his CV: Oxford Studies in the Philosophy of Law, The Oxford Handbook of Continental Philosophy, Nietzsche and Morality, The Future for Philosophy, Nietzsche, Objectivity in Law and Morals, Friedrich Nietzsche, Daybreak: Thoughts on the Prejudices of Morality. Seven books, not to mention all of his book sections and journal articles. Leiter is quite prolific, which likely explains why he's a a professor at a top law school rather than making a third of the same amount teaching at the University of Chicago's philosophy department, since at the end of the day he's not a law professor. He's a philosophy professor who teaches Evidence on the side.

Here is Leiter's response to the e-mail:

Dear Mr. [-----],

Are you actually an attorney at the firm in question? If so, why do you not appear on the website? Do your supervisors know that you are using the firm’s e-mail to send impertinent and juvenile messages to other professionals?

“Thinking like a lawyer” refers to a style of reasoning and analysis that is exemplified in the law section of appellate briefs and in judicial opinions; I assume you must be familiar with both genres. It encompasses, for example, the use of analogical reasoning to distinguish precedents or propose extensions or developments of existing doctrine, but also involves techniques of statutory and constitutional construction, the use of arguments from authority, facility with the law/fact distinctions, and so on. Again, merely looking at the chapter headings of Schauer’s book Thinking Like a Lawyer would illuminate this apparently opaque topic for you. Alternatively, you might read Edward Levi’s classic book An Introduction to Legal Reasoning; Mr. Levi was the former Dean of my Law School, as well as former Attorney General of the United States.

Of course, there are more skills involved in being a lawyer than thinking like a lawyer. There is industry-specific knowledge, know-how with respect to how local courts or regulatory agencies approach statutory language, rhetorical talent, as well as a range of psychological and interpersonal skills that are important. For example, most good lawyers I know, among my family and friends, exhibit maturity and professional judgment, that would prevent them from sending insolent e-mails from their’s firm account to other professionals. I will be sure to send a copy of this entire correspondence to the name partners of your firm.

In other words, "I think you're wrong, and now I'm going to complain to your boss about you." Brave action, from someone with the bullet-proof protection of tenure. David Bernstein at Volokh Conspiracy picked up the story, criticizing Leiter for his lack of civility and basic human dignity. Here's the choicest bit from that response:

I have a challenge for Prof. Leiter.  Let’s take the adjectives with which he has described the correspondence that prompted this round: juvenile, impertinent, and insolent.  Let’s get a panel of three neutral arbitrators, perhaps chosen from ABA ethics committees.  And let’s take some of Leiter’s choicer blog posts, and let the arbitrators decide whether his posts meet the accepted definition of juvenile, impertinent, and insolent.  (We can start with the one quoted above, though that’s a relatively tame one by his standards).  And since he obviously thinks there should be professional consequences for juvenile, impertinent, and insolent writings, if the arbitrators agree that his posts meet the definition for which he chose to try to humiliate and punish his hapless correspondent, he’ll take unpaid leave from Chicago for a year.

Of course, Leiter will never take him up on it. Why submit to any sort of authority when tenure means never having to say you're sorry?

Just for fun, let's look at a few of the best comments from Volokh:

David Neiporent says, "[Leiter is a smart guy] About some things. That nobody cares about. But if he were a tenth as smart as he thought he was, he'd have won the Nobel Prize. That is, all the Nobel Prizes."

Lashon Foster says, "Leiter reminds me of the character Jacob Ben Israel from Glee, who runs the school newspaper. He is wildly annoying and no one likes him, but because he controls the flow of the high school gossip, everyone must pay attention to him. Leiter's entire reputation in legal academia, at least, seems to be based on running a TMZ-esque blog. Perhaps he is more substantive in the philosophy community."

More to the substance of Leiter's response, John G. says, "Leiter: "'Thinking like a lawyer' refers to a style of reasoning and analysis that is exemplified in the law section of appellate briefs and in judicial opinions"

"That overly-narrow view of "thinking like a lawyer" exposes Leiter's ignorance of the profession and business of practicing law. Leiter is oblivious to the fact that 99% of thinking required of lawyers has nothing to do with the type of reasoning that goes into the law section of appellate briefs. In the real world, the "facts" do not magically appear as irrefutable knowledge from on high presented as a hypothetical question on a law exam. In the real world, there is no limited record upon which the arguments must be based. Litigation is about creating the record. Most litigation centers around developing the facts. A lawyer that doesn't understand that the job of "thinking like a lawyer" is focused on these tasks, not on legal argument, is not competent to handle litigation of any type without the assistance of other lawyers that do."


Now that we're all done having our chuckles about what a giant idiotic douche Brian Leiter is, let's ask the question this post started with. What's eating Brian Leiter? Why would he get so irrationally upset over a little one line e-mail? We think it's a combination of three factors:

1. Brian Leiter is a giant egomaniac. Not that we have anything against giant egomaniacs and aren't giant egomaniacs ourselves. But, it is a character trait that is quite unstable and can act as a sort of break-down catalyst.

2. Until recently, Brian Leiter was likely challenged rarely or never.

3. Brian Leiter's position of defending Law and Nietzsche is impossibly weak.

Law schools are coming under fire for needlessly raising tuition in order to support the wasteful fancies of tenured professors who write scholarship that is relevant to no one. If one were building a law school from scratch today, there is absolutely no argument that can be made for hiring Leiter over an expert in Evidence, or over borrowing a professor from the philosophy department at a fraction of the cost. The only defense Leiter can muster is that he is high profile among other professors and this helps boost a school's peer ranking for purposes of raising the US News ranking. Leiter's entire value to legal academia is as a trophy that other professors irrationally value.

Weak positions can sometimes be successfully defended, but only be someone with experience mounting a real defense. Leiter has tenure and his typical intellectual jousting partner is a law student. He doesn't write for peer-reviewed journals, and he writes in such an obscure niche that even if his writing were incoherent nonsense (and it may well be) there would be no other professors with enough knowledge of Law and Nietzsche to challenge him. With no one to fight, Leiter's capacity for serious intellectual engagement has atrophied.

His big-ass ego won't let that go. Lacking a defensible position or the ability to defend it, he resorts to name calling and threats for those who dare question their betters. The most telling part of Leiter's response is not, as many have pointed to, his e-mailing the firm's partners. It is his use of the word "insolent," which means being not merely contemptuous, but contemptuous of one's superiors. That's how Brian Leiter sees the world. His academic pedigree and publication history don't just make him a higher profile professor. In his eyes, it makes him a better human being than the masses who instead of "thinking like a lawyer" merely think as a lawyer.

Boone County Adopts Long Claw Rule

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At the end of last week, the ABA picked up a story about an Indiana courthouse using cats to control their pigeon problem.

Boone County, Indiana is about a half hour northwest of Indianapolis. The Boone County Courthouse (photo here) is in Lebanon, population just under 16,000. And evidently has a problem with pigeons. Since at least 2010, local news has reported on the issue and county officials have attempted several pigeon deterrents, including a plastic owl, to little avail. They’ve used a cat at least once before, which was apparently successful enough to merit a second attempt.

While the birds aren’t actually in the courthouse, the cats are. The cats, Boone, a male, and Panda, a female, have a litter box in the dome of the courthouse and a kitty door allowing them to leave whenever they wish. Guess no one is worried about them having a kitty house party, Tidy Cats litter commercial style. Or about this door letting in other animals. Like pigeons.

Cat owners might be wondering how this deterrent effect works, since cats are more or less the only creatures lazier than law students on winter break, and not much bigger than your typical well-fed courthouse pigeon. The deterrent plan plays to that strength: the cats essentially function as scarecrows, or, TRIGGER WARNING – bad pun ahead, “scaredycats”. They don’t chase or hunt or eat pigeons; they merely sit in the windows of the courthouse, and that’s frightening enough to keep the pigeons away. Guess there’s a reason it’s called “bird brained.” (Okay, we’ll stop with the puns.)

According to the courthouse maintenance staff, the cats have scared the pigeons away from the courthouse and most of downtown Lebanon. The city must’ve been a popular avian destination, as the courthouse maintenance director claims the cats have saved the county thousands of dollars in cleanup costs and man hours, spent mostly cleaning up bird crap.

Maintenance says cleaning out a litter box is highly preferable to cleaning up the pigeon droppings that fell in front of the entrance door on a daily basis, and no we are not making any of this up.

No word on whether there are any issues with litigants or litigators with cat allergies; or what, if anything the cats are sharpening their claws on; or what Boone County will do if the pigeons return (add more cats?). We do know, however, that Panda is spayed, so she and Boone won’t be having any pigeon-repelling kittens, at least not together. The article doesn’t say anything about Boone’s reproductive status, but we do know that this is just another instance of the judicial system trampling all over a woman’s right to choose. KIDDING.

We wish the best of luck to Boone County in keeping the shit off their courthouse, but we want to warn anyone who might try to play with the kitties. They’re not de-clawed, and unlike most government workers, it doesn’t take much to get them to go on strike.

Page 8 of 136

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