U.S. News & World Report Improves Transparency of Law School Rankings

Huzzah for U.S. News and World Report! The most recent edition of its law school rankings includes the median LSAT and GPA of each school’s entering class. Finally. I have long argued that USN&WR should publish all of the data that it uses in its rankings. How else can the rest of us (read: rankings geeks) understand how—and, indeed, whether—the rankings work? Though USN&WR remains short of that ideal, disclosing median LSATs and GPAs represents a major step towards making the rankings more transparent and, thus, trustworthy.

USN&WR started the trend towards transparency last year, when it began publishing the “volume and volume equivalents” measures that it uses in its law school rankings. That input counts for only .75% of a school’s score, however. Median LSATs and GPAs together count for 22.5% of a school’s score, in contrast, making their disclosure by USN&WR all the more helpful.

There remain only two categories of data that USN&WR still uses in its law school rankings but does not disclose: overhead expenditures/student (worth 9.75% of a school’s score in the rankings) and financial aid expenditures/student (worth 1.5%). It isn’t evident why USN&WR declines to publish those inputs, too, though perhaps the financial nature of the data raises special concerns. If USN&WR cannot bring itself to publish overhead expenditures/student and financial aid expenditures/student, however, it should abandon those measures. They serve as poor proxies for the quality of a school’s legal education and if we cannot double-check the figures we cannot trust their accuracy.

[Crossposted at Agoraphilia and MoneyLaw.]

The right families

I look behind my ears for the green
Even my sweat smells clean
Glare off the white hurts my eyes
Gotta get out of bed get a hammer and a nail
Learn how to use my hands, not just my head
I think myself into jail
Now I know a refuge never grows
From a chin in a hand in a thoughtful pose
Gotta tend the earth if you want a rose.

— Indigo Girls, Hammer and a Nail, Nomads Indians Saints (2000)

I grew up in the deep South. I have spent most of my adult life in exile as a stranger in the strange land called Academia. Though the deep South and Academia generally distrust each other, the two places do have some things in common. Chief among those shared traits is the belief that coming from the "right family" counts for something. After six years of publishing MoneyLaw, I'll readily concede that most of my readers will never understand the South and really don't want to understand it. That's a lost cause. But I do suspect that many readers of this blog know a "right family" when they see one. "Proffspring." Children of professors or politicians — hellfire, children of a professor and a politician — collecting another generation of Ivy or near-Ivy degrees. By and large, this is the bourgeois background that dominates acadème. They don't call it the ivory tower for nothing.

For weeks I've been looking for an excuse to post a link to the PBS quiz, White, educated, and wealthy? Congratulations, you live in a bubble. The quiz is quite illuminating. It illustrates the basic premise of Charles Murray, Coming Apart: The State of White America, 1960-2010: The United States, especially but not just its majority white population, is pulling apart like cells undergoing meiosis. The wealthier and (yes) whiter you are, the less likely you are to encounter anyone who deviates from your background. MoneyLaw veteran Jeff Harrison calls it class bias. Really, there's a simpler term for it. Business as usual in academia.

I scored 32 out of 100 points on that PBS quiz. Humble was I ere I saw Harvard: any points I scored were traceable to my upbringing in a comfortable but decidedly modest, working-class immigrant family. That score, PBS told me, is typical of a first-generation professional from a fair to middlin' working-class background. I strongly suspect that most scores in American legal academia would be much, much more sequestered.

I had occasion this week to speak to the hiring partner of a large law firm in a medium-sized American city (not Louisville). He reported an observation that bears repeating. This partner and his counterparts around the country have compared notes on all of the top-ten-percent students and law review editors their firms have hired. The factor that most accurately predicts success? Whether at least one parent worked with her or his hands. Seriously, get out of bed and grab a hammer and a nail.

Come to think of it, as the child of parents whose first jobs in this country were busing tables at Atlanta's old Stouffer Hotel and packing doughnuts at the Krispy Kreme on Ponce de Leon Avenue, I can definitely lay claim to a distinction that has dogged me my whole life, first as a child in and of the deep South, and later as a vagabond in Academia. I really do come from one of the "right families." Indeed, the very best.

Happy Mother's Day, Mom. And thanks, Dad, for marrying her.

Opportunity costs

Editor's note: This column is adapted from the February 2012 edition of Louisville Bar Briefs.

Opportunity is knocking. What will you pay to open the door?

In previous columns, I have given basic information about law school admissions. I have also shown prospective students how to evaluate law school debt as a crucial first step in determining their return on educational investment. Those columns have culminated in an article, "A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability," that will soon appear in the William Mitchell Law Review. I now wish to push the conversation deeper into the economic subtleties of what students can realistically expect to pay for law school — and what they can realistically expect to gain in exchange.

Read the rest of this post . . . .At the risk of overestimating my own literary powers, I deliberately intended the title of this column, "Opportunity Costs," to convey multiple layers of meaning. As a noun phrase, opportunity costs refer to a basic principle in economics. To an economist, every action, every choice must be assessed according to what the consumer has elected to forgo. Today's legal profession reflects every bit of the strain that grips the broader economy. It almost certainly is undergoing deeper structural changes that will affect lawyers' earnings for years to come. In that light, every prospective law student bears the responsibility to mind the particulars of economics as the dismal science. Going to law school commits you to a three-year wait on full-time earnings. Those three years will not be spent developing skills, honing expertise, or cultivating connections in some other field. All educational debt is nondischargeable, and there are no refunds on tuition, fees, books, or supplies.

Do understand. All of us in legal education fervently hope for bountiful season after bountiful season of law school applicants. I simply want to emphasize that students' eventual experience, during school and after graduation, will depend deeply on their expectations before matriculation. If you are contemplating law school but will go only if you hit a certain prestige level, you probably should not apply. If you are applying solely to please someone else — a parent, a spouse, a faceless figure named "Bourgeois Society" whispering at your back — you emphatically should stop the application process and devote your energy instead to mustering the courage to say "no." If you can imagine something you truly would rather do than to be a lawyer, then by all means spend those thousand days chasing another dream. Disappointment is the nearest friend of unrealistic expectations. Misunderstanding the enterprise of legal education and the eventual practice of law will undermine your success. Conversely, arming yourself now with research and deep introspection, long before you get your first tuition bill, represents a down payment on satisfaction and an actual, quantifiable livelihood.

I now reach a second level at which I want this column's title to be understood. Approach the phrase opportunity costs as a complete sentence, with a one-word subject and a one-word, one-verb predicate. Let me repeat my opening paragraph: "Opportunity is knocking. What will you pay to open the door?" Law school as opportunity demands that you open the door. Most economists would describe legal education as an experience good. Its quality and its value to you as the consumer become fully apparent only after you commit. Indeed, those very experts on consumer behavior might well describe law school as a credence good. You can't tell whether going was worth the while till long after you've left, and perhaps not even then. Even after you decide to attend and have spent four, five, six semesters on doctrinal details and practical experiences in a clinic, an externship, and a public service placement, validation of return on investment awaits the first job offer. There is a deep temptation to treat legal education as a search good, as though the culmination of each student's best efforts to engage classmates and professors during school can be distilled into single-dimension scalar measures of an extended experience — all in advance of the first three years of a lifelong professional commitment.

Let me be clear. No. No third party, let alone one that has put no skin of its own in the game, can realistically evaluate each student's educational experience or the broader market's eventual reaction to each student's accomplishments during school. That is not how it works. Global capitalism teems with products whose price, quality, and value are immediately apparent and readily enable sophisticated purchasers to make rational decisions to buy, sell, hedge, or sit out. West Texas crude. Durum wheat. But not education. Nor, for that matter, legal services.

This brings me to the final set of subtleties that I hoped to convey by naming this column, "Opportunity Costs." Focus on that word, opportunity. I will make a few observations about how law school graduates make money. As a teacher of law who has always taken pride in his own knowledge of economics and taken pains to share that knowledge with students, I can't resist one teaching more lesson in economics. And as a producer of legal scholarship informed by economics, I want to set out my own agenda — I want to lay down an intellectual marker — for future work on this subject.

In one of the chapters of The Black Swan: The Impact of the Highly Improbable, Nassim Nicholas Taleb recalls his own days at the Wharton School of Business and how one classmate urged him to pursue only those careers that were "scalable." So began the tale of how Taleb, one of the true geniuses of our time, threw his talents into trading securities as opposed to pursuing some craft whose payout hinged on his own efforts. Whereas a single bet on the capital markets — shorting collateralized mortgage obligations, going all in on European sovereign debt on the assumption that the European Central Bank and German politicians would never permit default — can move or destroy staggering amounts of wealth with no meaningful difference in effort, almost everyone else, even in an information-based economy, earns a paycheck based on some multiple of hours expended.

Again, I will mince no words. In the terms that Taleb has described, the overwhelming majority of livelihoods in law more closely resemble those of barbers, butchers, and bakers. Government attorneys, in-house counsel, and a very significant number of lawyers in highly leveraged, multiple-partner firms derive their compensation on a basis that lends itself to accurate calculation on an hourly basis. Lawyers working on any variant of the contingency fee model, far from achieving escape velocity from nonscalable work, bear the extra burden of assessing the likelihood of getting paid by a particular client for a particular case. Only the narrow tier of equity partners have a stream of income that remotely resembles those of Taleb's "scalable" professionals. This is no different from medicine. Most physicians belong in exactly the same category. Revenue depends on patients seen and treated. The overwhelming majority of cardiologists draw their pay from the number of hearts cured. A tiny, lucky fraction might win a product patent for a stent or a process patent for a revolutionary surgical procedure. But even in medical specialties, runaway profit on some sort of nonscalable business model is a spectacularly rare exception. Human optimism emboldens us to hope for outsized gains. Human wisdom counsels us to work for realistic goals.

More sophisticated economic analysis of the potential payout from legal education demands, at a minimum, a human capital asset pricing model akin to modern portfolio theory's basic tool for pricing companies and investments. For an introduction to modern portfolio theory through an application of its principles to a set of legal problems, I invite you to download "Modern Disaster Theory: Evaluating Disaster Law as a Portfolio of Legal Tools," which I will soon publish in the Emory International Law Review. The tradeoff between legal education's costs — from opportunity cost in the most traditional sense to the best available projections of educational debt service — and the economic gain from a law degree boils down, as does virtually every other question of professional training, to calculations based on probabilities, variances, and correlations. Like capital markets, though, truly accurate answers must also account for a host of unpredicted contingencies (what Taleb calls "Black Swans"), to say absolutely nothing of unruly emotional and behavioral factors that wreak havoc on the most quantitatively elegant economic models.

All of that, as economics textbooks and instructors like to say, is an exercise to be left for the reader. In this instance, for the writer as well. For now, I return to a very modest twist on my original question. The law school opportunity knocks. What are you, prospective student, willing to pay to open the door?

The better angels of our profession

Adapted from the December 2011 issue of Louisville Bar Briefs and from The Cardinal Lawyer

With his series of articles on legal education, David Segal of the New York Times has left a deep impression. From the beginning of calendar year 2011, Segal has repeatedly criticized some aspects of contemporary legal education. In an age when lawyer salaries have not kept pace with ballooning law school costs and student debts, he has questioned the economic rationality of attending law school. He has accused some law schools of offering financial aid packages that are tied to maintenance of seemingly attainable grade point averages, which then evaporate in the face of tough grading curves and expose scholarship recipients to second- and third-year bills for full tuition. He has challenged universities to prove that they are not running law schools as cash cows for cross-subsidizing lower-revenue units on campus.

But nothing else in David Segal's portfolio has caught the legal academy's attention like his November 20, 2011, article called "After Law School, Associates Learn to Be Lawyers." This excerpt provides the flavor of the article as a whole:

[T]he three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.

What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”

In other words, "Everything I needed to know about law, I didn't learn in law school."

Read the rest of this post . . . .To cap things off, the Times published a staff editorial immediately after Segal's article on the contrast between law firms' expectations and law schools' priorities. "Legal Education Reform" called upon American law schools to adopt sweeping reforms, including wholesale reconsideration of its emphasis on legal reasoning, especially as demonstrated in appellate cases.

Law professors across the country have reacted rather strongly to the New York Times' series, particularly Segal's article on law faculty hiring and the staff editorial demanding law school reform. Those reactions have fallen into three broad categories. Elisabeth Kübler-Ross would be proud: Faced with this challenge to their dignity and their raison d'être, law professors collectively have covered nearly the entire emotional range of the grieving process. Some have reacted with denial and anger. Others actively try to bargain with other branches of the legal profession. Still others, albeit with some measure of depression, have done their best to accept appropriate criticism and to begin framing some form of meaningful, constructive response.

Let me begin with the angry deniers. For my part, I do not believe that law professors and law schools do themselves any favors, in an age of indebted students, unemployed law school graduates, and laid-off lawyers, to trash these criticisms as a "hatchet job" or (better yet) a "bile pile." It takes a deep measure of cynicism — petty selfishness, really — to characterize the Times as being motivated by their writers and editors' failure to get relatives into law school or past the bar exam. A second, less angry cohort of law professors fervently wants to believe that tough times in the legal profession are merely cyclical. Wait a year or two or five, so the wishing goes, and things will be back to the way they always were.

Count me in the third camp. The criticisms are real. They sting. All of us, from law schools and law students to lawyers and law firms, have to do something. Things could, things should be better.

There is, to be sure, much to criticize in the work of Segal and his Times colleagues. "After Law School, Associates Learn to Be Lawyers" makes serious factual errors. Segal mischaracterizes the content of law school courses on criminal law and criminal procedure. He represents as legal scholarship an article appearing in a philosophy journal. The Times as a whole seems to belittle the value of analytical legal reasoning and, correspondingly, to elevate certain formalities of legal practice (such as filing a certificate of merger). But to take issue with these minutiae, let alone to tee off in anger or resentment, is to pay no heed to the realities of modern legal practice. The business of delivering traditional legal services has lost much of its value. Along with the conventional lawyering model, the value of a generalist legal education has also plummeted. At once opportunistic and enterprising, all sorts of competitors — foreign lawyers, nonlegal professionals, actual lawyers who understand the urgencies of a mobile, technologically volatile age — are upsetting longstanding expectations about beginning salaries and the up-or-out partnership track. Cost-conscious clients distrust the billable hour. They are even more hostile to the idea of subsidizing the training of rookie lawyers who haven't learned all they needed during 90 credits of formal law school coursework.

As serendipity would have it, the entire episode coincided with my discovery of psychologist Steven Pinker's latest book, The Better Angels of Our Nature: Why Violence Has Declined. There is a single gem of wisdom in Pinker's book that seems particularly pertinent to this controversy. Pinker reports, on the basis of deep knowledge about human pyschology, that people systematically overestimate their own grievances and underestimate the pain borne by others. This bias transcends the notion that the grass is always greener on the other side of the fence. It's the regrettable tendency that we all have: believing that our grass alone is brown, and it's the fault of all our neighbors.

Demonizing the opposition is the root of all violence. And violence takes many forms. The ancient and modern societies of Pinker's book wage war. If only they took prisoners, rather than enslaving their enemies or slaying them outright. Lawyers, including those who teach law more often than they practice it, too often excel in inflicting emotional wounds for no apparent purpose except to assuage their own sense of hurt. When it comes to genuine reform of legal education and the profession it serves, casting Segal and the New York Times onto the "bile pile" of academic amusement and aggrandizement accomplishes absolutely nothing.

The hard truth is that law schools could stand to act more like law firms, paying closer heed to what lawyers actually do for a living. Law firms could stand to to act more like law schools, absorbing the cost and the responsibility of training their new recruits instead of expecting law professors to know skills best perfected far from the classroom. Law students would be well served to take a hard, financially sophisticated look at the out-of-pocket and opportunity costs of legal education, to say nothing of the strictly pecuniary returns on their investments in personal capital. The Socratic method and the parsing of written appellate opinions have a firm place in law school. But law schools and bar examiners and hiring partners should all work together to reconsider why and how we teach certain things. Sheer age and force of habit are terrible excuses for doing anything, much less forcing aspiring members of our profession to endure a three-year ordeal. The relative cheapness of traditional lecturing explains why it's more prevalent than hand-to-hand clinical teaching, but cost alone sheds at best incomplete light on the value of practical as well as intellectual training in law school. And no one, inside or outside the academy, has ever found the perfect way to convey subtle skills that arise over the course of a lifetime of professional activities and interpersonal relationships.

We have to start somewhere. Perhaps we can begin by admitting that everyone is in pain. Law students are in debt. Law schools face budget cuts. Law firms are enduring layoffs and lower per-partner payouts. For once, we might acknowledge that all of us have grievances, that our own complaints may be no more pressing than those of our companions. Fingers we have been too quick to point might yet touch what Abraham Lincoln called the mystic chords of memory — strings that can be struck only by the better angels of our profession.

The ratio of educational debt to income as a measure of law graduates’ viability

I offer the following publicly available summary of my fuller paper, A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability, which can be downloaded at http://bit.ly/DegreePracticalWisdom and has been discussed in this forum. I will be discussing this paper during my contribution to the deans' forum in the annual program of the Section on Socio-Economics at the 2012 meeting of the Association of American Law Schools in Washington, D.C.

This table defines marginal, adequate, and good levels of educational debt, relative to monthly or annual income, based on loans amortized over 25 years at a fixed rate of 6 percent:

Financial viability	EBER (educational back-end ratio) = monthly debt service / monthly gross income	EDAI = total debt / annual income
Good	0.04	0.5
Adequate	0.08	1.0
Marginal	0.12	1.5

The simplest measure of whether a student can afford law school is to project the ratio of future annual income to total law school debt. The most conservative assumption is that law school debt will equal three times tuition. I presume that students enter school with no other debt. I further presume that students can fund the cost of living without further borrowing. On those assumptions, the ratio of annual income to educational debt is simply the reciprocal of ratio of educational debt to annual income, with loan principal defined as annual tuition times three:

Ratio of annual salary to law school debt = annual salary / (annual tuition * 3)

Applying my definitions of good, adequate, and marginal financial viability to this ratio generates three very simple rules of thumb. To offer good financial viability, defined as a ratio of education debt to annual income no greater than 0.5, post-law school salary must exceed annual tuition by 6 to 1. Adequate financial viability is realized when annual salary reaches three years of tuition. A marginal level of financial viability requires a salary that is equal to two years’ tuition:

Tuition	Salary needed for good viability	Salary needed for adequate viability	Salary needed for marginal viability
$16,000	$96,000	$48,000	$32,000
$32,000	$192,000	$96,000	$64,000
$48,000	$288,000	$144,000	$96,000

Counter Offers and Prospect Theory

One of the things you hear in law teaching is how salary increases are the result of counter offers. A faculty member gets an offer from another school and then asks her dean to match or beat it or she will leave. (I am not sure the dean's response is really a "counter offer" unless it's viewed as a response to an offer made by the the threatening faculty but that is for contracts teachers to figure out.)

Before getting into the main point, I think it is important to note that the number of offers faculty talk about having exceeds the number they actual have and this exceeds the number they would actually accept. In short, there is a bit of gaming. [A second point that is unrelated: Hey UT Law School, I need a loan.]

Most of the time when I hear of counter offers I think about prospect theory -- what is this obsession deans have with keeping people from leaving. So often their efforts are misguided. When it comes to faculty there are good loses and very few good keeps that are also controllable.

Offers from other schools fall into three categories; Ones the Dean cannot possibly keep the professor from taking, those that the person would not take even if the dean did nothing, and those in which the dean's actions may make a difference.

At my school we have had two people go to much better schools. The deans involved had no chance but foolishly acted like they did. Foolish not just because they had no chance but because these were good losses. It was a feather in our cap to have them move on and, perhaps, less of a feather if they had stayed becuase,alas, they would still be at UF. Similarly, when the professor is going "back home" or to a highly preferable geographic or life style setting, forget about it. Let them go.

When the offer is from a school down in the pecking order and the professor shows up to discuss it with the dean, it's a "tell" -- they have mixed feelings and it may just be posturing. They may or may not go and the dean may make a difference but should seriously consider not budging. Admittedly, this is related to my view that virtually all faculty at schools from 25 on down are fungible in that no students or alums and not many faculty will even notice they are gone. Still, just how many students is the person teaching? How flexible has he been? Does he pimp articles of others by badgering the law review? Does he work for the good of the whole or just for himself? This could well be another good loss. Plus there are few ways to undermine whatever morale there is than by giving a huge raise simply because a lesser school will pay him more money. I do not follow that logic but many deans rely only on short term or myopic logic.

Somewhere between these two good losses there are those a dean should try to avoid and he could make a difference. One reason to keep someone is simply to avoid the transaction costs of replacing him. If the potential increase in productivity from a replacement is low or negative and the money saved in transactions costs relatively high, it makes sense to try to hang onto the person up to a point. That point depends on the salary for the replacement.

My perception which is admittedly mostly anecdotal, is that deans have an irrational aversion to letting people go. Unless the person is really awful I've seen them stretch to keep them even when we would not hired them today as a lateral. I've even seen them cave into threats to leave and efforts to leave that did not pan out.

Ours is an odd profession. I remember being on the way to my first teaching job and this thought occurred: "I know a fair amount of economics [not as much as I thought I did] but I did not take any courses on teaching." A similar thought occurs to me when I look back at over 30 years of the decision making of administrators. "Most of these deans were law teachers and scholars and many of them not that good. Now they are in management. Have they taken any courses on management"

A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability

Jim Chen, A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability, 38 Wm. Mitchell L. Rev. (forthcoming 2012):

This article evaluates the economic viability of a student’s decision to borrow money in order to attend law school. For individuals, firms, and entire nations, the ratio of debt to income serves as a measure of economic stability. The ease with which a student can carry and retire educational debt after graduation may be the simplest measure of educational return on investment.

Mortgage lenders evaluate prospective borrowers' debt-to-income ratios. The spread between the front-end and back-end ratios in mortgage lending provides a basis for extrapolating the maximum amount of educational debt that a student should incur. Any student whose debt service exceeds the maximum permissible spread between mortgage lenders' front-end and back-end ratios will not be able to buy a house on credit.

These measures of affordability suggest that the maximum educational back-end ratio (EBER) should fall in a range between 8 and 12 percent of monthly gross income. Four percent would be even better. Other metrics of economic viability in servicing educational debt suggest that the ratio of total educational debt to annual income (EDAI) should range from an ideal 0.5 to a marginal 1.5.

EBER and EDAI are mathematically related ways of measuring the same thing: a student's ability to discharge educational debt through enhanced earnings. This article offers guidance on the use of these debt-to-income ratios to assess the economic viability of students who borrow money in order to attend law school.

To offer good financial viability, defined as a ratio of education debt to annual income no greater than 0.5, post-law school salary must exceed annual tuition by a factor of 6 to 1. Adequate financial viability is realized when annual salary matches or exceeds three years of law school tuition. A marginal, arguably minimally acceptable level of financial viability requires a salary that is equal to two years’ tuition. The following table compares some tuition benchmarks with the salary needed to ensure the good, adequate, and marginal levels of financial viability identified in this article:

Tuition	Salary needed for good viability	Salary needed for adequate viability	Salary needed for marginal viability
$16,000	$96,000	$48,000	$32,000
$32,000	$192,000	$96,000	$64,000
$48,000	$288,000	$144,000	$96,000

Available for download on SSRN at http://ssrn.com/abstract=1967266. Highlighted by Paul Caron on Tax Law Prof Blog, by Karen Sloan in the National Law Journal, by Sam Favate on the Wall Street Journal's Law Blog, by Debra Cassens Weiss in the ABA Journal, and by the Ed Clinton Law Firm Blog. Paul Caron has kindly written a follow-up post.

David Segal's critiques of legal education and the academy's reaction

David Segal of the New York Times has spent the better part of 2011 skewering American legal education. Academic reaction, though never favorable, reached a nadir when Segal assailed legal scholarship and the process for hiring law professors. This post is intended primarily as a way of documenting the Segal critique and some (though by no means all) of the academy's reaction to it.

Segal's articles:

1. The economic irrationality of the decision to attend law school
2. Allegedly deceptive practices in the awarding of law school scholarships
3. The economics of law school admissions
4. How the curricular priorities and hiring practices of law schools depart from legal employers' expectations
5. A Times "Room for Debate" forum, The Case Against Law School
6. A Times staff editorial, undoubtedly inspired by Segal's series, urging reform of legal education

Herewith a few responses to the Segal series and to the larger issues triggering this discussion:

1. Paul Caron's compilation of academic responses to David Segal
2. Paul Caron, Are Law Review Articles Worth $575 Million ($4,000 Per Student) Per Year?
3. Sarah Krakoff, David Segal's Paper Chase and Some Musings on Legal Education
4. Dan Farber, The Unexamined Life of the American Law School
5. Bill Henderson, The Hard Business Problems Facing U.S. Law Faculty
6. Michael Froomkin, Links to Postings on l'Affaire Segal
7. Daniel Martin Katz, Thoughts on the State of American Legal Education — The New York Times Editorial Edition
8. John Steele, 1.5 Cheers for Segal's Article
9. Matt Bodie, A Recipe for Trashing Legal Scholarship
10. Orin Kerr, What the NYT Article on Law Schools Gets Right
11. Frank Pasquale, New York Times Financial Advice: Be an Unpaid Intern Through Your 20s (Then Work till You’re 100)
12. Brian Leiter, Another Hatchet Job on Law Schools
13. Scott Greenfield, Those Who Can't, Teach Law
14. Peter Tillers, Sequelae to Law School and Law Practice, and A Bit of Progress Immersed in Murk
15. Bruce Ackerman, The Law School Experience (letter to the editor of the New York Times
16. Stanley Fish, Teaching Law

Practical advice for new law professors: Grading on a curve

Around this time of year, American law schools begin issuing offers for entry-level, tenure-track teaching positions. The typical new recruit has more experience with scholarship than with teaching, grading, or lesson-planning. MoneyLaw will offer some practical advice to some of these new law professors. I will start by explaining standard scoring, more colloquially known as grading on a curve.

Why? At a minimum, this forum takes some pleasure in indulging the holiday spirit of giving and sharing. More seriously, I am acutely aware that many American lawyers — and many of their teachers — tend to be innumerate. With regrettable frequency over the course of nearly two decades in the legal academy, I have heard tenured law professors assert that "there is no mechanical way to convert raw scores to scaled grades." The truth is much simpler: There is a set of practical problems that mathematics can solve. Standard scoring is one of them. Instead of being content to post the occasional exercise in refreshing my own quantitative skills, I will try to share a few things with newcomers to the academy — ideally, things not discussed at the law school hiring combine or during faculty orientation.

Most (though not all) American law schools enforce some form of constraint on the grades that their professors can assign. Wikipedia has collected a list of grade point average curves at American law schools. The subject arises with regularity in prelaw and law student blogs, and with good reason. Some law schools condition their students' retention of financial aid on the maintenance of a minimum GPA. If you know the mathematics of standard scoring, you can predict with a high degree of accuracy the probability of maintaining the threshold GPA throughout all three years of law school. Students and professors alike therefore have a stake in understanding the mathematics of grading.

Read the rest of this post . . . .In my experience, law professors who react instinctively, and perhaps even inanely, against grading on a curve do so for either or both of two reasons. One is simple ignorance, a byproduct of the innumeracy that might have prompted them to study law instead of a more quantitatively demanding discipline. The other is an inborn distrust of authority. That distrust often extends to school-wide rules on mean GPAs or grade distributions, as though divining the precise line between a C+ and a B- represented a central plank of academic freedom. The truth is that standard scoring leaves ample discretion for all instructors to evaluate their students and to distribute individual grades. The only constraint is that the mean grade in each course should fall within some range. (How tight that range should be, like almost every other subject imaginable, is the subject of some dispute among law professors.). Moreover, the exercise of "grading on a curve" is both mathematically elegant and logistically simple. You have no excuse for not grading on a curve.

Absent extraordinary circumstances, grades in any class will follow a normal, Gaussian distribution. Happily, grading a class means measuring an entire population. We can therefore use standardization techniques.

I will further assume, for clarity's sake, a straightforward map of points corresponding to letter grades. In increments of 0.333, progress from 0.000 for an F to 4.333 for an A+. In other words, a C+ is worth 2.333. A B- is worth 2.667. Many schools use no more than one significant digit after the decimal point, which leads to mathematical anomalies arising from crude rounding. At 2.3, a C+ is 0.3 points removed from a C, but 0.4 points removed from a B-.

Finally, I assume that the professor consistently adheres to some way, any way of assigning raw scores. Giving points for each valid argument and assigning percentages for each task accomplished represent merely two among many plausible methodologies. The real trick lies in converting these raw scores to standard scores.

Begin by calculating the z-score. The z-score, or simply z, may be computed according to this formula:

z = (x – μ) / σ



Where:

x  =  Raw score to be standardized
μ  =  Mean raw score
σ  =  Standard deviation

In practice, most values of z will be greater than -2 and less than 2. Absolute values of z exceeding 2 correspond to true outliers, and those students are either ironclad locks for the book award, or good candidates for receiving an F. In my own career, I have issued F's very sparingly because the D and D- minus grades carry roughly the same message without automatically depriving a student of academic credit. Generally speaking, if |z| > 2, I counsel removing the grade in question from the curving algorithm I am about to describe and assigning it "manually," after careful comparison to the other student performances that are closest to it.

If the target class mean is a C+, or 2.333, and the instructor is willing to stretch the distribution of grades from a dummy grade of F+ (0.333, or 2.333 - 2, as the midpoint between an F at 0.000 and a D- at 0.667), to A+ (4.333, or 2.333 + 2), then each student's grade can be very simply calculated:

g = 2.333 + z

This example works because it a special case, with very easy figures, of the more general formula for standardizing a set of normally distributed raw scores:

g = K + z * (M – K) / 2

Where:

g  =  Scaled grade
z  =  The z-score (standardized score) as defined above
K  =  Target class mean
M  =  Maximum grade point value, typically 4.333 in a system with an A+

The denominator in the final fraction, or 2, reflects the maximum absolute value of z that we realistically expect to encounter in this population. It would not be inappropriate to adjust this denominator slightly upward to catch not just most but all scores we expect to fall between the first and 99th percentiles. Nor is it inappropriate for an instructor to give close personal attention to exams whose z-scores approach -2. In the absence of a true F+ grade, a scaled grade of 0.333 invites discretion to choose between an F and a D- (or a D in universities that have abolished the grade of D-).

Substituting 2.333 for K and 4.333 for M yields the simpler formula above.

Recall my earlier observation that most (though not all) z-score values will fall between -2 and 2. In other words, -2 ≤ z ≤ 2 in most instances. If you divide the z-score range from -2 to 2 into equal bands of 0.5, and you envision all z-scores below -2 and all z-scores above 2 as bands of their own, you will find 10 zones corresponding very nicely to the 10 passing grades from D+ to A+, inclusive:

Minimum z-score	Letter grade
<-2.0	D+ (or lower, in truly extreme cases)
-2.0	C-
-1.5	C
-1.0	C+
-0.5	B-
0.0	B
+0.5	B+
+1.0	A-
+1.5	A
+2.0	A+

The closely related system of stanines (Standard Nines) also works very well with the grading scale I have just described. The United States military historically valued stanines as a way of translating the z-scores of standard scoring, which range across either side of zero, to a scale of single-digit integers from 1 to 9 inclusive. To use stanines, divide a Gaussian distribution into nine bands, centered on the fifth band. The second through eighth bands each traverse 0.35 standard deviations; the first and ninth stanine cover, respectively, the lowest and highest ends of the distribution. Assigning a B- (2.667) to the fifth stanine and moving one-third of a letter grade in each direction yields the following table of converted grades:

Stanine	Letter grade
1	D+ (or lower, in truly extreme cases)
2	C-
3	C
4	C+
5	B-
6	B
7	B+
8	A-
9	A (or A+, for truly outstanding performances)

As a final bonus, faithful readers of this forum will recognize that z-scores lie at the heart of the U.S. News rankings of law schools and other branches of American universities. Demystifying standard scoring in the classroom represents a modest but important first step toward demystifying one magazine's standards scores of competing classrooms.

The Skills Thing

Jim has provided an excerpt from Sunday's NYT front page article on Law Schools. The article make some good points on the topic of legal scholarship. On the other hand, the article's whining about preparing students to practice law made me consider getting off the "more skills" bandwagon.

I was struck by a collective law firm sense of entitlement. This sense of entitlement seems to equate the bottom line interests of small and large firms with what law schools should be doing. Public law schools already provide a huge human capital subsidy to private law firms. (I've never understood why this started other than to subsidize the class of people who had property to protect.) Now the firms have their hands out asking for more. Closely related is the tendency for some law schools now to offer classes on "law firm management." Exactly why a public school should teach a law student to operate his or her business and not the manager of a laundromat is not clear to me.

There is another problem with the "skills" thing. Most of the people I know who talk about skills and even teach one version or another have not practiced law, practiced a very short period of time or practiced it 20 years ago or more. In fact, a 45 year old with twenty years of recent experience typically falls to the bottom of lists of possible hires.

I am also not sure I know what the word "skills" means. My fear is that to the extent the desire for more skills is voiced by those in law teaching it may have a self-referential component. If you are into mediation, guess what skill might mean to you. Same for arbitration, collaborative law and so on. And I sense there is an ideological element here as well.

Maybe public law schools should eliminate skills altogether or offer them at an enhanced level of tuition. After all, these highly "skilled" graduates would save law firms so much money they almost certainly would offer higher salaries to graduates that would off set the extra tuition. Of course, it is just possible the firms prefer to stay on the dole.

Everything I needed to practice law, I didn't learn in law school

In his ongoing series of searing critiques of legal education, David Segal takes aim again at the excesses and shortcomings of American law schools. He describes this scene from "a crash course in legal training":

[T]he three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.

What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”

Legal education and the heir of Slytherin

That was then. This is now.

In my own lifetime, fiction for young adults has moved from S.E. Hinton to J.K. Rowling. Gritty stories about rumbling gangsters at an Oklahoma high school have given way to soaring fantasies about dueling sorcerers at the Hogwarts School of Witchcraft and Wizardry. At heart, though, I still believe what John Steinbeck said in East of Eden: There is one story in the world, and only one. Whether the setting is Will Rogers High, Hogwarts, or the law school of your choosing, formal schooling often pits Socs against Greasers and Purebloods against Mudbloods. The narrative is one of epic, ceaseless competition between elites and outsiders.

If you've managed to miss one of the greatest cultural phenomena of the last generation, let me introduce you to the magical world of Harry Potter. The boy wizard finds himself locked in a life-and-death struggle against the irredeemably evil Lord Voldemort. In his own time as a student at Hogwarts, Voldemort revived an old grudge that the ancient wizard, Salazar Slytherin, held against those he felt unworthy to practice magic. As the self-anointed Heir of Slytherin, Voldemort sought to purge all Muggle-born witches and wizards from Hogwarts and the magical arts. Who are Muggles? We nonmagical folk are Muggles. Voldemort had no use for witches and wizards born of ordinary, nonmagical parents. In the mind of the Dark Lord, only those born to pure-blooded witches and wizards deserve to command the potions, incantations, and spells of his profession.

Read the rest of this post . . . .All of this prepares me to open one of the darkest chambers of secrets in law and legal education. Law schools and the country's largest law firms have long occupied — and jealously guarded — the most coveted corners in the American legal profession. Indeed, these institutions perpetuate each other's lock on power and prestige. Every city has its collection of "BigLaw" firms — highly leveraged partnerships performing a wide range of legal services on behalf of the corporate and institutional clients that control our society's greatest concentrations of wealth. BigLaw draws its talent from the most highly credentialed students emerging from our law schools. Without elite grades, no student stands a chance of scoring a BigLaw interview, let alone a BigLaw job.

At some schools, BigLaw does dig deeper in the talent pool. Of course, those schools are the prestigious ones with national reputations. Typically they're named for dead white men who conquered and paved North America, or else for big, wealthy states. At schools such as Harvard, Duke, or Vanderbilt, or Virginia, Michigan, or Berkeley, BigLaw historically has been willing to interview a broader spectrum of students. At schools that historically operated under a municipal charter and have dedicated themselves to the higher training and useful education of local youth, BigLaw has been decidedly pickier.

This is not an altogether flattering portrayal. I admit as much. In fairness, I will say this: My own corner of the profession, legal education, has been complicit in this elitist exercise. That is a severe understatement. Indeed, law schools collectively have elevated grades and rankings above all other considerations. Legal educators devised the elitist complex of grades, honors, law review credentials, and federal court clerkships on which BigLaw has built its entire model for evaluating talent. If anything, academia has doubled down on BigLaw's bet. We draw our own faculty ranks from an even more selective pool of candidates. BigLaw and American law schools have anointed their superstars on the basis of schools attended and grades attained when these lawyers and professors were students in their twenty-something years, as though ancient educational credentials represented the lone basis of membership in some sort of professional apostolic succession.

Excessive emphasis on pedigree over performance has pushed the legal profession to a point of reckoning. Hourly billing, at hundreds of dollars per hour and without regard to actual value delivered, is a barbarous relic that contemporary clients, sensitive to their own economic survival, have rightfully begun to reject. Law schools can no longer indulge the conventional assumption that they can focus entirely on training their students to "think like lawyers," without attention to concrete skills or the pragmatic nuances of actual practice. Every instance of mismatch between paper credentials and actual performance on the job signals incompleteness or even outright inaccuracy in the elite model of legal education and BigLaw recruitment. Every BigLaw hire that flames out after two unproductive years should prompt honest recognition of the limits of elite credentials. Honesty about the limits of the existing model of legal education should prompt all law schools to ensure their students a true return on their educational investment, to prepare all students not just to ace an exam or "book" a subject, but to be as fully prepared to serve clients and deliver results as a lawyer can be upon passing the bar exam.

This is not a jeremiad against legal education and elite law firms. All models of legal practice, in firms large and small, in government as in education and in philanthropy, deliver value to clients and to society at large. I believe wholeheartedly in the transformative power of legal education, motivated by a passion for teaching and informed by serious scholarship. For me to believe otherwise would force me to declare my own life an evil, bankrupt waste, and I emphatically believe that I have not lived in vain.

For good reason, jobs in BigLaw and the legal academy are very highly coveted. A BigLaw salary is one of the very few ways a new law school graduate can realize an immediate return on educational investment. Law professors earn very decent pay, with tenure, for intellectually stimulating work in an environment dedicated to educating youth and elevating society. If anything, though, the benefits of working in BigLaw or the legal academy affirmatively compound the heavy burden that its defenders must discharge. Those of us who care most about the legal profession and have gained the most from it owe a corresponding duty to take a hard look at the weaknesses of our shared calling. Whatever personal or professional inconvenience we may incur, those of us at the pinnacle of professional success must tell the truth.

How shall we make things better? I always recommend some combination of honesty and optimism. Speak the truth and point to hope. This message combines my own experience with insights from history and literature. The world in which S.E. Hinton came of age was one that locked the rival political ideologies of the Soviet bloc and the north Atlantic alliance in mortal combat. The world of Harry Potter is one that pits the virtuous Order of the Phoenix against Lord Voldemort's degenerate Death Eaters. Those stories, real and fantastic, teach us useful lessons. Extreme opponents often become agents of reconciliation. The greatest breakthrough between the Communist world and the West came when Richard Nixon, the consummate Cold Warrior, visited "Red" China. By contrast, those who prevail through conflict and confrontation often do so by virtue of some close connection to the enemy, perhaps even kinship. At the risk of spoiling J.K. Rowling's books and the movies inspired by them, I will tell you that Harry Potter ultimately defeats Voldemort on the strength of a mysterious connection that links the boy wizard to the Dark Lord's most treacherous powers. The intermediary who helps Harry harness those powers had himself been seduced in his youth by the Death Eaters. The power of the enemy, personally taken, holds the key to victory over that foe.

And so it must be that a critic of elite legal education, to be credible, must be one who has succeeded by its terms, both in school and in later professional life. With your indulgence, I'll make my argument very personal. In my twenties I enjoyed a double dose of privilege and prestige: Not only did I attend Harvard Law School alongside the future President of the United States; I also clerked at the Supreme Court of the United States. These experiences gave me the privilege of choosing between BigLaw and the legal academy. I spent many hours in my thirties divining some of the law's most intellectually challenging mysteries, from the use of macroeconomic indicators in utility regulation to the legal protection of biodiversity and functioning ecosystems as information platforms. All those things came to me, in large measure, because I turned in fantastic performances in torts, federal courts, and international business transactions. Those grades predicted intelligence of some relevance to the legal profession, and I worked my hardest to make good on the promise of my youth. But the task to which I have devoted my forties, that of managing a complex educational institution for the betterment of its students and the clients they will ultimately serve, is one that transcends my grades, my diplomas, my clerkships, and even the articles on my curriculum vitae. Everything I've done in life didn't get graded in law school. Grades were then. Life is now. As a firmly committed Muggle, I am no heir of Slytherin. Fate did bestow upon me a bundle of legal education's most elite experiences. And this is what I have learned since graduation: There is no value in prestige or credentials. There is only performance, and those who have the wisdom to prize it.

The Least Ethical?

In what my wife calls my not real world life I typically come into contact with attorneys, law professors, students, and expert witnesses. Within each group I observe a great range of ethical standards although the pressures are always downward. Nevertheless like four racehorses, I think of the groups as racing to the bottom. In terms of shameless lying, expert witnesses are still in the lead. Have you ever compared what some law professor experts write and then the positions they take for money? And then there is the sad story of Robert Lucas -- Nobel Prize winner -- getting clobbered for his expert opinions.

The latest Law School cheating news -- Illinois -- makes me reconsider the ranking. Is it possible law faculties (including deans) have overtaken expert witnesses? I'd be inclined to give Illinois a break since the differences are small. If you are going to lie, why not go big time? On the other hand, just like getting the wrong change back in some foreign countries, the errors always seem to cut in one direction. These "mistakes" at the margin may affect the investment decisions of thousands of law students. Is there a remedy for them?

Still out there is the ethical question I asked about six weeks ago. One school lies. The other school spends thousands hiring its own students or recruiting transfer students or teaching new bar exam courses so it can "honestly" report its new numbers. But for the rankings, it would not have done any of this. Is redirecting resources in this way any worse than lying?

Just a perfect reflection

Guster, Fa Fa

As economic fortunes fall anew and fear runs rampant, legal education is experiencing another season of regret. Recent graduates and even some students have come to regret their decision to attend law school. They're hardly alone.

Regret is nothing more than fermented wisdom, and I am a very wise man. There are moments when I fervently wish I could take my own academic advice, dispensed at greatest length in The Death of the Regulatory Compact: Sunk costs are just that, sunk. Time moves in one direction. So should we.

In this spirit I offer my readership this musical interlude. Its essential message is a familiar one. For those who might prefer T.S. Eliot's formulation over Guster's, I'll happily oblige:

What might have been and what has been
Point to one end, which is always present.
Footfalls echo in the memory
Down the passage which we did not take
Towards the door we never opened
Into the rose-garden.

Remember always that the detail of the pattern is movement.

Is Villanova Evil or Just Efficient?

This story has been bouncing around for months but, as so often happens, I am the last to know. As I understand it, Villanova, to put it bluntly, lied.

I am wondering just how bad that is. Compare an alternative. A School adopts new and expensive programs because it will help in the rankings game. But for the rankings these programs would not be adopted. It hires its own grads, introduces bar prep courses, admits fewer first year students, increases transfers, and calls everyone a professor. Now it accurately reports its new and more impressive numbers. Putting aside the possibility that the rankings may have induced the school to do the right thing for the wrong reasons, is the second school less corrupt than a false reporting school?

Maybe Villanova just got the result it wanted at a lower cost and with less waste.

Taken for a ride

AM Radio, Taken for a Ride

I can no longer ignore that, for a very large proportion of my students, law school has become something very much like a scam. . . . When people say 'law school is a scam,' what that really means, at the level of actual moral responsibility, is that law professors are scamming their students.

So laments the introductory post to Inside the Law School Scam, a confessional blog by an anonymous "tenured mid-career faculty member at a Tier One school." This fascinating contribution to the burgeoning online literature on the economics of legal education and law school graduates' job prospects is unique because it comes from the inside. In his critique of legal scholarship, this blogger, both tenured and anonymous, confesses that "students at the contemporary law school end up paying enormous amounts of money for something that they aren't getting, and in many cases wouldn't want even if it were being provided to them."

This is prose as potent as it is provocative. Inside the Law School Scam essentially argues that law schools and law professors are taking their students for a ride. I look forward to each installment of this anonymous blogger's saga.

Matasar criticizes the "inordinate scrutiny" given to law schools

In the first segment of a two-part interview responding to David Segal's critique of law school economics, Richard Matasar says that law schools receive "inordinate scrutiny."

The economics of law school admissions

It is now officially a muckraking crusade.

Three times this calendar year, David Segal of the New York Times has commanded the front page of the Sunday business section with an exposé of the business of law schools. First, he assailed the economic rationality of anyone electing to study law. Then came his attack on the use of deceptive scholarship awards to attract students and boost rankings. Now comes a more comprehensive broadside against the economics of law school admissions:

Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.

Meanwhile, David Leonhardt of the Times writes that the Great Recession refuses to ease into a renewed cycle of job growth because nothing has emerged to replace the economic model of consumer spending and easy debt that fueled the collapse in the first place.

The task of discerning the validity of these critiques and, if appropriate, applying the lessons learned to the project of reforming legal education is left as an exercise for the reader.

Which side are you on?

In academia, this old question of labor-management relations has an especially odd twist.

Stanley Fish recounts a recent dispute over the reorganization of Idaho State University from seven to five colleges:

The story is a familiar and dispiriting one: the administration is accused of imposing its will in the face of strong opposition from the faculty, and the faculty is accused by the administration of being obstructionist and standing in the way of needed reforms.

For whom do you work? In almost any other line of work, the answer is clear: A "jeweler or accountant or court clerk" works for the owner of the enterprise, or at least the government agency, that issues her instructions and pays her for services properly rendered. Academia, for good or for ill, operates under no comparable clarity.

I leave to Stanley Fish the task of describing all the details of the Idaho State controversy. The crucial question was whether Idaho State's president has "the authority to try" to reorganize his university and to "live or die by the results," or whether instead he must "receive the faculty’s permission before he exercises his administrative judgment, the judgment for which, one assumes, he was hired?"

The American Association of University Professors and other proponents of shared governance demand much more than consultation. Shared governance rests on the notion of academic expertise. Precisely "because academics are experts in their subjects and in the art of teaching," shared governance assigns to faculty members the responsibility to make "core academic decisions." The question, as Fish poses it, is whether "academic expertise extend[s] to the planning and construction of buildings, the projection of budgets, the intricacies of the legislative process, the presentation of the university to the general public, the interface with industry and the relationship between university organization and budgets?"

The AAUP's report on the Idaho State affair leaves no doubt of that organization's answer: “It is no coincidence that many who seek to reduce higher education to a form of narrowly conceived job training are also in the forefront of efforts to replace shared governance with a corporate style of management.” One presumes that even the most diehard members of the AAUP hope someday to retire on the strength of corporate management, if only at TIAA-CREF and the publicly traded companies whose securities populate TIAA-CREF's mutual funds. I'll leave the solution of that conundrum as an exercise for the reader. This much is clear, though. When it comes to labor-management disputes, in academia as in Harlan County, there are no neutrals there.

Tenure in disfavor among college presidents

A majority of college and university presidents surveyed by the Pew Research Center and the Chronicle of Higher Education effectively oppose tenure:

Less than a quarter of those surveyed said they would prefer full-time, tenured professors, while a whopping 69 percent reported to prefer that a majority — if not the entirety — of faculty work under annual or long-term contracts. . . .

Mark C. Taylor calculates in his book Crisis on Campus that someone who serves as an associate professor with tenure for five years and then becomes a full professor for 30 years sets a private university back $12.2 million and costs a public university $10 million during the same period of time. . . .

At public four-year institutions, 52 percent of presidents with previous faculty background favored tenure, while just 37 percent without faculty experience did. Among presidents of private four-year institutions, 35 percent who had formerly served as faculty favored tenure, compared with 20 percent of those without faculty experience.

Is there academic freedom in this controversy?

Stanley Fish warrants frequent mention on MoneyLaw for his wisdom on academic freedom. In a recent New York Times blog post, Fish helps us filter legitimate claims of academic freedom from a noisy backdrop in which that principle is too readily invoked and thereby too easily cheapened. Fish cites more comprehensive works — especially Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (2009) and Rodney A. Smolla, The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University (2011) — but his own summary is worth reproducing here:

[A]cademic freedom is a useful notion only if it is narrowly defined. More things escape its ambit than fall within it. . . .

No one owns a course; no course has a right to be given; and no subject has a claim on university time and money. [Too many commentators] cry[] academic freedom whenever a university does something they don’t like, and by doing so, they cheapen the concept. . . .

[True academic] sin is to insist that a certain idea be discussed whether or not it has made its academic way because a few disappointed outsiders are willing to spend big bucks to get it inside. If, in the judgment of an instructor, “Atlas Shrugged” will contribute to a student’s understanding of a course’s subject, there is every reason to assign it. But if assigning “Atlas Shrugged” is the price for the receiving of monies and the university pays that price, it has indeed sold its soul. . . .

[A]cademic freedom issues legitimately arise . . . . when the university either allows its professors to appropriate the classroom for non-academic purposes . . . or allows itself to become the wholly owned subsidiary of another enterprise . . . .