The Volokh Conspiracy

Via Paul Caron at TaxProfBlog and the Wall Street Journal Law Blog, a proposal by Joshua Silverstein, law professor at Little Rock-Arkansas William Bowen School of Law, to eliminate the “C” in law school grading.  Here is the SSRN abstract for “A Case for Grade Inflation in Legal Education,” forthcoming in University of San Francisco Law Review:

This article contends that every American law school ought to substantially eliminate C grades by setting its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.

It is worth the time to read the whole article, because it is a more nuanced argument than perhaps the abstract suggests.  In fact, speaking as someone best described as a reluctant convert to the virtues of a required mean because of the problems of grade compression, Professor Silverstein manages to persuade me as to the bottom of the scale and where it should cut off, given the realities of the perceptions of grades.  (I remain as convinced as ever of the need to rein in the pressure at the top – and it is the nuance of Silverstein’s argument that persuades me that these are not quite identical.) Part of the nuance of the argument is that Silverstein favors – “I am a staunch proponent” – the practice of grade normalization (required mean or some form of required curve).  It’s the lack of some required mean or curve that produces  pressure toward the top (in part from unstated forms of competition among professors that always ratchet the mean upwards, never downwards, or at least only rarely so). Having taken care of that top-end problem by a forced mean or curve, Silverstein can turn his attention to the bottom.

Silverstein argues for chopping off the C grade, first, on the grounds that many law schools essentially don’t use it, and this puts students from one school at a disadvantage to students from schools that don’t give Cs.  Although a matter of importance to some law schools, in context of his central thesis about C grades, it is the less relevant argument.  But he also argues – and this is the heart of the argument – that even within a school and its grading system, students suffer unjustified internal psychological harms as well as unjustified external market harms from being classed as C students, as though it were a grade like any other, but just a grade like any other that happens to be a bad grade.  These harms aren’t really justified in more than a tiny number of cases; a B- would send an adequate signal about performance without stigmatizing the student in the way that a C does.  Silverstein would ideally like to see the following:

Paul Caron at TaxProf Blog provides a table of law professor salary data reported by a handful of schools to the annual survey request from the Society of American Law Teachers (SALT); in addition to those reported salary figures (assistant professor, tenured professor, summer stipend), there are links to individual salaries at a number of public universities.

Richard Epstein reviews Steven Harper’s The Lawyer Bubble: A Profession in Crisis in today’s WSJ. The review begins:

Law schools are under siege. Applications have dropped to around 54,000 annually, from around 100,000 in 2004. First-year enrollment has slipped to under 40,000 students, from 50,000 in 2010. Jobs are scarce—especially for students coming from lower-tier law schools. The average annual tuition has risen to just over $40,000 per year, from about $23,000 in 2001. Average debt on graduation has followed suit, jumping to about $125,000 in 2011, from $70,000 in 2001. No wonder many experts expect perhaps a dozen schools to close their doors within a year while other schools slash their class size, faculty and staff to stay open.

Meanwhile “Big Law”—the largest 200 or so law firms, which serve elite corporate clients in major urban areas—are under stress. Firm size has topped out, and both partnership shares and entry salaries are treading water at best. Clients now scour bills and disallow certain fees. Alternative, transaction-based fee arrangements are now more common. Competition has replaced cushy long-term relationships.

Terrible news, for sure. But is the “Profession in Crisis,” as the subtitle of Stephen J. Harper’s “The Lawyer Bubble” has it? The answer is no. A bubble may have burst, but not for the high end of the profession or for the thousands of attorneys working in specialized niches. Mr. Harper, a former partner at Kirkland & Ellis, a 1,500-lawyer global firm headquartered in Chicago, and an adjunct at Northwestern University Law School, takes undue pride in chronicling how the mighty have fallen. But he misses how they may rise again.

Below I’ve created a table listing the top fifty-five law schools according to their “peer” ranking on U.S. News, with the last column showing each school’s ranking according to the latest “scholarly impact” study conducted by folks at St. Thomas Law School. Two schools stand out as being wildly underranked by their peers compared to their scholarly impact: George Mason, ranked 55 by peers but 21 by scholarly impact, and Cardozo, ranked 51 by peers and 25 by scholarly impact.  In fact, no other schools ranked as well as Cardozo and George Mason in scholarly impact ranked lower than 23rd in the U.S. News peer rankings.

The most overranked school by these measures is Wisconsin, which is ranked 23 by peers but is not in the top 55 by scholarly impact.  (St. Thomas, by the way, is well out of the top 55 by peer ranking, but is number 31 in scholarly impact.)

Note that U.S. News asks academic rankers to rate law school quality, not scholarly prowess of the faculty.  Still, there is a strong enough relationship between the two overall for anomalies to be notable.

H/T to Paul Caron at Taxprof, who created a similar table comparing Peer Rank to overall U.S. News rank.

Today all of The Faculty Lounge’s permanent bloggers posted a notice stating that none of them have ever disclosed identifying information about anonymous or pseudonymous bloggers to any third party. The post comes in response to allegations by Paul Campos that someone at TFL had given such information about a pseudonymous commenter to Brian Leiter.  More background here.

UPDATE: Paul Campos seems less-than-satisfied with the TFL statement. Paul Horwitz is, shall we say, less-than-satisfied with Campos’s post.

Co-blogger Jonathan Adler quotes Professor Herbert Hovenkamp of the University of Iowa Law School, below, as stating:

The overwhelming majority of my colleagues believe in diversity in faculty hiring, and I believe most would include ideological diversity of both right and left. Some would regard diversity more as a “tie breaker” for choosing among people with roughly equivalent records, while others would reach further. I am confident that no one on our faculty would discriminate against a candidate because of his or her views. Our hiring goal, just as that of all other law schools I know, is to hire the most skilled, able teachers for our students.

Color me rather skeptical that most members of the UI faculty are seriously interested [beyond perhaps in response to the p.r. fallout from the lawsuit against the school for ideological discrimination] in pursuing hiring faculty ideologically on the “right” as a goal, much less that they’d prefer a “right-wing” candidate over an equally qualified candidate on the left, much less that any significant number would “reach further” than that. Some of my skepticism is an artifact of my understanding of what goes on at most law schools, but it’s also a product of this paragraph from the New York Times:

According to Ms. Wagner’s lawsuit, the law faculty at Iowa in 2007 included a single registered Republican among its 50 or so members. The Republican professor was appointed in 1984. In 2009, The Des Moines Register found that there were two registered Republicans on the faculty.

But maybe I’m too cynical. After all, not every conservative or libertarian law professor is a registered Republican (conversely, not every Republican is libertarian or conservative), and not everyone who gets an offer for an entry-level or lateral position takes it.

There is at least one way to clear the air. Surely, as part of its defense against the Teresa Wagner’s claim that she was discriminated against based on her conservative views, the law school’s lawyers prepared an exhibit showing all of the right-of-center faculty candidates to whom the law school had offered positions over, say, the decade before Ms. Wagner’s lawsuit commenced. After all, if a significant list of such candidates existed, that would be good circumstantial evidence that the law school didn’t discriminate on the basis of ideology, and thus didn’t discriminate against Ms. Wagner. The exhibit, in turn, would be public information, so if Prof. Hovenkamp or someone else at the law school would forward me this list, I’m sure my cycnicism will be easily overcome. Folks at UI should feel free to send that exhibit, or any other such list, to me at dbernste [at sign] gmu [dot] edu.

(And by the way, I’m pretty confident that there are a lot more law professors who “believe” that their faculties should make more of an effort to increase their ideological diversity than there are those who will actually recruit and vote for such candidates in practice).

UPDATE: I have a friend at a top law school who assured me that his colleagues would never discriminate based on ideology. In fact, he added, he was about to push a candidate with “right-wing” political views, and he was sure the faculty would be interested. A while later, I inquired as to how things went. The answer: “Remember how I said my colleagues wouldn’t discriminate based on ideology? I was wrong.”

FURTHER UPDATE: Several readers remind me that in Ms. Wagner’s case itself, jurors told reporters after trial they thought that she had been discriminated against by the faculty based on her ideology, but perhaps not by the dean, who was the actual defendant. Take the jurors’ opinion for whatever you think its worth, but it certainly lends no support to the claim that the Iowa faculty was actively seeking ideological diversity.

The University of Iowa College of Law’s Professor Herbert Hovenkamp, offers the following statement on the dismissal of Teresa Wagner’s lawsuit against the school alleging ideological bias in hiring.

While the Wagner viewpoint discrimination trial involving the University of Iowa College of Law has generated considerable attention, the only principals who have spoken to the press are associated with the plaintiff. Since the court has now entered its judgment for the College on all counts I feel free to say a few things. I was on the faculty appointments committee that was responsible for hiring in our Legal Analysis, Writing and Research (“LAWR”) program the year in question.

Teresa Wagner is a quiet and pleasant person whom I came to know during the hiring process. To this day I have never seen her speak of her political beliefs or even ask questions or make comments at faculty seminars, which she occasionally attends. This was not a case where we debated about whether to hire someone with a particular ideology. The subject never came up, and I learned of her views for the first time when her complaint was announced.

The federal jury trial in this case was conducted by Senior District Judge Robert W. Pratt, an excellent federal district judge. The opinion dismissing the complaint, which was issued March 8, recites very few facts; however, the trial was videotaped in full and can be viewed or downloaded here.

The trial and public record show the following:

A. During the year in dispute we hired one “permanent” entry level LAWR faculty member and one “adjunct.” The stated job criteria were strong academic credentials, a preference for teaching experience, and a “job talk” presentation to the faculty. The “adjunct” position, which did not require a job talk, was a one year evaluation position which could lead to the more durable position. The plaintiff had not written any law review articles or books, although she had edited two collections of essays authored by others. Scholarship was not a stated qualification for the position.

B. Five candidates were in the Committee’s recommended pool for two positions. Three (including the plaintiff) had J.D.s from Iowa, one from Texas, and one from Harvard. Four of the candidates had excellent academic records ranging from 3d in the class to just under the 90th percentile of their respective classes. The plaintiff had a lower GPA, which placed her roughly in the 62-65th percentile of her class. One of the five initial candidates dropped out after a poor job talk. All remaining candidates had some teaching experience, and all but the plaintiff had student teaching evaluations which became part of their application dossier. While the plaintiff had taught a legal writing class some two years as an adjunct at George Mason Law School, she was unable to produce any of her teaching evaluations. After her job talk we contacted GMU Law School directly in an effort to obtain her teaching evaluations, but GMU was unable to produce them either.

C. The one hiring criterion that was hotly disputed was the quality of the job talk. The plaintiff herself testified that it was good, while numerous faculty members testified that it was a failure, often in strong terms and well illustrated. If you want to see the details of that testimony look at the video. My own assessment, shared by most others, was that she was articulate on the need to improve students’ writing skills. Even after questioning, however, she seemed unwilling or unable to discuss legal analysis, which the faculty deemed to be an essential part of the position.

In every vote taken, the plaintiff went up against candidates with better academic records, fuller teaching records, and better job talks. Any report to the effect that she was rejected in favor of a “less well qualified” candidate simply has no basis.

The overwhelming majority of my colleagues believe in diversity in faculty hiring, and I believe most would include ideological diversity of both right and left. Some would regard diversity more as a “tie breaker” for choosing among people with roughly equivalent records, while others would reach further. I am confident that no one on our faculty would discriminate against a candidate because of his or her views. Our hiring goal, just as that of all other law schools I know, is to hire the most skilled, able teachers for our students.

Teresa Wagner sued the University of Iowa School of Law alleging she was passed over for a faculty position due to ideological bias. The jury rejected some of her claims but deadlocked on another. On Friday, a federal district court dismissed Wagner’s one remaining claim and rejected Wagner’s motion for a new trial. Here are reports from the Des Moines Register and AP. The judge’s order is here.

NOTE: I’ve posted a comment from Iowa’s Herbert Hovenkamp here.

UPDATE: Paul Caron rounds up coverage of the case here.

Paul Campos has posted a farewell post at his “Inside the Law School Scam” blog.

UPDATE: Comments from Paul Horowitz and Brian Leiter.

In response to widespread complaints, the National Jurist has reviewed its use of data from Ratemyprofessors.com.  While NJ still insists it was appropriate to use this haphazardly collected data for one-fifth of each school’s rating, it has been forced to revise the RMP score for two-thirds of ranked schools.  Let’s say that again: The National Jurist went to press with a ranking system that included mistakes for two-thirds of the ranked schools.  Even if one were to believe that it was reasonable to use RMP scores in the first place — and it was not (as discussed here and here) — this degree of sloppiness is appalling.  It was utterly  irresponsible for NJ to go to press with rankings based on such slipshod work, and a disservice to the prospective students NJ was purporting to serve.  Brian Leiter is correct – NJ should simply confess error, deep six these rankings, and start over from scratch.

National Jurist will revise its much-maligned law school rankings, according to an announcement from NJ editor Jack Crittenden on the publication’s website.  Although NJ defends its decision to rely upon Rateemyprofessors.com for 20 percent of each school’s rating (for those schools for which sufficient data is available), it has acknowledged some data disparities and is going to revisit the ratings for all schools in which the NJ-RMP.com score deviates from the school’s Princeton Review score.  According to Crittenden:

We still believe that the voice of students is essential to any ranking that is designed to identify the best schools for students, and we feel we have put together a thoughtful and important ranking. But we recongize that poor quality data would leave the ranking marred. Our primary goal is to help students and prospecitve law with useful and accurate data. At the end of this review, we have all confidence that this study will meet our goal.

I certainly agree with those who think the US News ranking is flawed. I also agree that it would be valuable to measure the quality of instruction at law schools.  But there is no credible argument that Ratemyprofessors.com does this.  The data is haphazard and unreliable and, in my experience, does not correlate with student evaluations.  There’s even an argument that Ratemyprofessors may select for things (e.g. easiness) that may inversely correlate with the quality of instruction. While this is not true for every subject, there are plenty of subjects that cannot be taught well without seriously challenging students.

I am also not convinced that current students are the best judge of the value of what they are learning in the classroom.  I am contacted quite often by former students who say they did not appreciate certain aspects of my classes until once they were in practice.  Surveys of recent graduates might be a good way to measure the quality of instruction, but such data would be costly to collect.

Measuring the quality of law school instruction across institutions is certainly difficult.  but that doesn’t justify reliance on a seriously flawed metric, let alone using it for one-fifth of each school’s score.

UPDATE: Leiter has more here.

Professor Jim Moliterno of Washington and Lee Law School has a lengthy post over at The Legal White Board, which is in part a response to my post on this blog suggesting that the jury remains out as to whether W & L’s innovative curriculum is a hit among prospective law students.

I noted that despite what appears to be have been a banner year last year in admissions, “W & L’s median LSAT score was in the top 20 of law schools when it announced its experiential curriculum in 2008, and that it’s gone down every year since.”  Moliterno replies, “Actually the W&L median LSAT was steady at 166 from 2005-2010, dropped 2 points to 164 in 2011 and stayed at 164 for 2012. It has not ‘gone down every year since [the new curriculum was announced in 2008].’”

Moliterno seems to have misunderstood what I wrote, and, in retrospect, I can see that I wasn’t clear.  I did not mean that W & L’s median LSAT score went down every year.  I meant that relative to other law schools, W & L’s median went down every year.  As a result, W & L’s median LSAT was in the top 20 among law schools in 2008, and was not even in the top 30 in 2012.

I also noted that to the extent W & L’s admissions stats are taking a dramatic turn for the better, it may not be because of its curriculum, but because W & L is being especially generous with financial aid, making it, on average, one of the least expensive law schools in the U.S. News top 40 for out of state students.

Moliterno replies that when asked about the strengths of the law school, students ranked the curriculum number one, and financial aid awards number nine.  I don’t know if the students were given a list or just asked to volunteer strengths (it wouldn’t be obvious that one should volunteer “financial aid package” as a law school “strength”), but in any event I find this an odd way to determine whether the curriculum is popular among law school applicants, most of whom, of course, do not attend W & L, including most of those who receive offers of admission.  He also claims that matriculating students are increasingly likely to flag the curriculum as a factor in attending, which does at least suggest that the curriculum is either helping more or hurting less than it had been among prospective applicants, but we still don’t know whether it’s making an overall positive difference in admissions, nor is it easy to determine how much of a factor the curriculum is as opposed to generous financial aid.  Moliterno doesn’t deny that W & L has, in fact, positioned itself as a less expensive alternative (after financial aid) to other prestigious law schools. In my view, this is especially advantageous, more so than it would have been ten or even five years ago, given legitimate concerns among students about their ability to pay back large law school debt in the current employment environment. Even students who are enthusiastic about the curricular innovation would be (much?) less likely to attend if their tuition bill was 20k a year higher.  I also would like to see more than one real banner year in admissions.  For unknown reasons, George Mason had such a year in 2010, and wound up matriculating an unexpectedly large class, but it didn’t repeat itself.

Finally, I suggested that it struck me as unlikely that W & L’s curriculum will make a significant positive difference with prospective students until W & L can show that it improves employment outcomes.  Moltinero replies, “It is too early for employment data. One full class has graduated from the new curriculum, in May 2012, and that in a time of such incredibly reduced employment of new lawyers.  No innovation, no matter how much it might improve graduates’ abilities to perform, will change employment data until employers become convinced.”  I agree, but I also think it will hard to persuade hiring partners , who, as I noted, tend to think that any innovation that they didn’t benefit from in their law school days couldn’t possibly be that important.

Note that I’m not saying that W & L’s innovative curriculum won’t eventually improve W & L’s ability to attract top students.   I can’t even be sure it hasn’t started to do so.  I just think we need more evidence before we can draw the sort of wildly enthusiastic conclusions that prompted my original post.

(Posted inadvertantly before it was ready, and edited to improve the substance.)

National Jurist decided to toss its hat into the law school rankings ring, and the result is something of a joke.  Among other things, NJ decided to base 20 percent of each school’s score on the haphazard evaluation of its professors on Ratemyprofessors.com.  (No, really.   I couldn’t make this stuff up if I tried.)  As Brian Leiter notes, this ranks among the most ridiculous criteria ever used in a law school ranking.  It would be methodologically absurd to base any amount of a school’s ranking on this “data,” but 20 percent?  And someone got paid to put this together?  If that were not bad enough, some of Leiter’s readers appear to have discovered errors in the calculations, and that’s before raising questions about other aspects of these new rankings. It’s no wonder Above the Law calls these rankings “pure ridiculousness.”

I have no problem with law school rankings and greater law school transparency.  Giving prospective law students more ways to evaluate their options is all to the good.  No ranking is perfect.  For instance, there are good arguments for placing greater weight on costs and outcomes than does U.S. News, and there has been an interesting debate about how best to measure faculty productivity and scholarly impact.  It can be informative to consider why some schools perform better under one set of metrics than another.  If the methodology is reasonably sound (and competently applied) it will reveal something, and readers can decide for themselves how much weight to give the results.  But for a ranking to be worthwhile, it must represent a good faith effort to measure something that matters.  How anyone at NJ thought their new ranking satisfied this minimal criterion is beyond me.

New York Times coverage of the mid-year ABA meeting, and the report of its Task Force on the Future of Legal Education, here.

Bill Henderson has a post over at The Legal Whiteboard that has been getting a lot of attention in law school circles, praising W & L’s innovative curriculum, which focuses on practical lawyer skills, as both an educational success and as a hit with law school applicants.   Bill goes over some of W & L’s recent admissions data, and concludes:  ”A sizeable number of prospective students really do care about practical skills training and are voting with their feet.  W&L has therefore become a big winner in the race for applicants.”

Some caution is in order here.  My understanding is that W & L’s median LSAT score was in the top 20 of law schools when it announced its experiential curriculum in 2008, and that it’s gone down every year since, while its GPA rank has, after a plunge, more or less returned to where it was.  As Bill points out, W & L had a banner “yield” last year, with many more students accepting offers than places available, with a substantial percentage of students being asked to defer, and the first-year class still filled beyond capacity.  So we’ll have to see whether future statistics reflect strong gains in GPA and LSAT ranks, or whether W & L is attracting many students, but the “best” (most sought-after because of their LSATs and GPA, which are for the most part all law schools care about thanks to US News) students are still avoiding it.

Even if W & L does wind up with increasingly strong classes while everyone else is struggling, it wouldn’t be clear that its curriculum is the primary cause, or perhaps a cause at all.  Washington & Lee has a tuition “sticker price” of around $42,000,  but is known for being among the most generous law schools with regard to financial aid.  Indeed, once financial aid is taken into account W & L may well have the lowest effective tuition for out-state-applicants of any law school in the U.S. News top 40, save for BYU (which has limited appeal to most prospective applicants) and perhaps the University of Alabama.  W & L  is also located in a small town with an especially low cost of living.  To the extent that law school applicants have become significantly more cost-conscious and reluctant to take on debt because of the awful legal job market, W & L is clearly one of the law schools most likely to benefit.  The lesson may, in fact, be that the best way to recruit students is to offer legal education at a lower cost than is offered by your competitors.

I’m not saying, however, that I know that W & L is not, at this point, receiving some reputational benefit among applicants due to its curriculum. But I at least suspect that this benefit would only really start to manifest itself if there were some evidence that W & L applicants have brighter career prospects because of this curriculum, i.e., that employers are, on a relative basis, more inclined to recruit W & L grads because of this curriculum.  There may be such evidence, but if so Henderson doesn’t mention it.  (My own experiences in the legal world suggest that hiring partners tend to be of the opinion that since THEY managed to get where they are without x or y–clinics, law and economics, legal writing classes, whatever–they couldn’t possibly be important hiring criteria.)

None of this, by the way, goes to Henderson’s main point, which is that W & L’s curriculum is proving to be an educational success–that, perhaps, should be the subject of a separate post.  And I think such experiments are great, there is no reason that all law schools should follow the same path.   And while, as Henderson mentions, some academics are skeptical that the curriculum, which depends in part on adjuncts, could be pulled off in Lexington, it’s also the case that it may be more important to have such a curriculum in such places, where students have relatively few opportunities to gain practical experience by clerking for a law firm part time during the school year.

But all that said, I don’t think Henderson provides sufficient data to conclude that “a sizeable number of prospective students really do care about practical skills training,” at least not the extent that W & L’s curriculum has actually improved the “quality” of students relative to who would be matriculating there if the law school had retained a standard curriculum.