Bracket, rankings, and money oh my!

So the NCAA 2017 Division One Men's Basketball Tournament began this week. As computer-based workers stop doing their jobs and start watching basketball, it seems like a good time to look at another famous ranking that came out this month. I refer to the US News and World Report's annual ranking of Best Law Schools.  

Refreshingly on point or highly tendentious?

Reader Astrophel brings to my attention an essay entitled, "The real reason law schools are raking in cash," by Benjamin Winterhalter for Salon.com.

Spoiler alert: the reason is capitalism. Well, that and Richard Posner.

I may respond to the essay here soon, but for now I invite Astrophel to share his thoughts in the comments. He takes the "refreshingly on point" side of the titular dichotomy. I take the other.

Torvik on Gillette on Posner on Punishment

Great post, Mr. Gillette. I find it cosmically amusing that you started out your post talking about the first case we read in law school, because I read about this Posner concurrence earlier today and it reminded me of the first thing I remember reading about in Crim Law—a case that involved whether to impose sentences that keep people imprisoned into the senescence. For whatever reason, the case always stuck with me. With the issue in the news I thought, "I should look into that and do a post about it."

Well, I just pulled out my old Criminal Law textbook and found the case (with the help of my Crim Law "outline," which, yes I still have). The case is U.S. v. Jackson, 835 F.2d 1195 (7th Cir. 1987). Incredibly, the memorable part of that case is a concurrence by—you guessed it!—none other than Judge Posner:

Top 10 Things I Learned as a Judicial Extern (in 2001!)

I am kind of a digital packrat. I have saved and kept accessible nearly  every file I created in college and law school (though some of them are now in unreadable file formats). Today, for reasons best left undisclosed, I took a trip deep into the archives.

One thing I stumbled across was a long-forgotten "journal" from my days as "judicial extern" to Hennepin County Judge John Holahan. This was a for-credit internship during the summer of 2001 that allowed me to serve as a proto-law-clerk for Judge Holahan. Part of the deal was that I had to keep this "journal."

It is interesting reading, although there are, of course, many wince-inducing passages.  The journal ends with the following top ten list, which I found pretty amusing:

Top Ten Things I Learned in my Judicial Externship

10. Not all judges wear robes. [I believe this was in reference to Judge Jack Nordby, who wore a three-piece suit.]

9. Copying machines these days have this fancy mechanism that allows you to insert a stack of papers and it will just gobble them up and copy them like magic. 

8. Court reporters and clerks of court wield unbelievable power if they should decide to use it. 

7. There is a surprising amount of domestic abuse in lesbian relationships. 

6. Speaking of homosexuals, I learned that their ineligibility for marriage really screws them over because they have no legal recourse when it comes time to get divorced. 

5. Good lawyers beat bad lawyers in trial. 

4. Excited utterances are an exception to the hearsay rule—that'll come in handy when I take evidence this semester! 

3. "In the end, it's giving that makes you happy."  --Judge Holahan 

2. It's good to be the judge—but you do have to deal with a lot of stupid crap. 

1. The Court of Appeals is a gaggle of idiots!

I can't say that I necessarily recommend that law students sprinkle their writing assignments with phrases like "a lot of stupid crap" and "speaking of homosexuals," but that's the way I roll.

Justice Scalia's advice to law students: just say no to frills.

The Caspar, Wyoming Star Tribune has a report about a speech that Justice Scalia gave to students at the University of Wyoming law school.  The article mentions the advice Justice Scalia gave the students about what courses they should take.

The Infield-Fly Rule

When we were studying the commerce clause (or perhaps "the dormant commerce clause") in law school, the professor asked the class, "What is the difference between Wisconsin and Iowa?"

The context was that long-haul truckers prefer to drive through Iowa rather than Wisconsin, so the answer was very clear: Wisconsin has hills, Iowa doesn't.

Still, such an open-ended question gets my jokey little brain going and, after a long uncomfortable silence where no one was willing to supply the correct answer, I found myself blurting out: "Wisconsin has a baseball team."

It got a pretty big laugh, but it also got me a homework assignment. I was to go to the library and seek out a famous law review article: "The Common Law Origins of the Infield Fly Rule." And I did. (It was actually kind of difficult because the article was too old to be found on Westlaw, so I had to pull an actual dusty book off the shelves. Ew.)

The article is hilarious. The very first word—"the"—is followed by a footnote to the OED definition of this definite article. (A not-so-subtle knock on persnickety law-review editors.) But it is also pretty informative and substantive. I recommend that anyone interested in the history of sports give it a read. It is also essential background information for evaluating John Roberts's claim that a judge is just an umpire. (Because it turns out that umpiring is more interesting and iterative than it may at first seem.)

Anyhow, the infield-fly rule is in the news because it played a significant role in the outcome of the one-game wildcard playoff game between St. Louis and Atlanta last night. It's unclear to me whether the correct call was made (though the Atlanta fans certainly made their position known), but I think it's great that this wonderful and confusing rule is in the news. Here's a nice read.

In case your j.d. needs an upgrade

Yale is now offering a PhD in law.  Should we return to the happy days of law school, Mr. Torvik?

And the other shoe drops...

A couple of weeks ago I posted about how the University of St. Thomas School of Law had replaced the William Mitchell College of Law as the second ranked law school in the Twin Cities in the US News best law school rankings.  The post noted that St. Thomas, despite taking its data accuracy "very seriously," had over reported by more than 200% the number of St. Thomas graduates who were employed at graduation.  It wasn't clear to me whether correct reporting would have ranked William Mitchell above St. Thomas.

We don't have an answer to that question but the National Law Journal reports that US News has decided to move St. Thomas into the "unranked" rankings.  Unranked schools are the lowest 25% of American Bar Association accredited schools. An asterisk will appear next to St. Thomas's entry to explain the change.

Unsurprisingly, Thomas Mengler, the dean at St. Thomas, is not very happy about this.  Dean Mengler wrote a letter to US News complaining that in previous years schools did not suffer in the rankings until the year following the discovery of inflated numbers.  I have no idea why a worse rating next year is better than a worse rating this year but assume that Dean Mengler knows what he is doing. 

That said, Dean Mengler really isn't concerned about the punishment that St. Thomas receives.  He is more concerned that future accidental mistakes of this nature will not be uncovered because of the precedent set by US News.  Dean Mengler writes, "I fear your decision will serve as a disincentive for others to self-report errors."  That may be true.  However, a steep punishment might also serve to make folks double check so that the numbers are accurate the first time.  In any event, it is nice to see the Dean take time out from his immediate problem and instead focus on how the punishment hurts the punisher.

Oops

The National Law Journal has a story about one of the four law schools here in Minnesota.  When US New issued its best law school rankings, I quit looking after number 19 as that is where our Alma Mater was ranked.  More astute readers of the rankings noticed that some changes occurred in how the other Minnesota Law Schools are ranked.  Specifically, unlike previous years where the William Mitchell College of Law was the next highest ranked Minnesota law school, this year the University of St. Thomas came in at No. 119 ahead of both William Mitchell at No. 127 and Hamline University which was listed as “Rank not published.”  However it turns out there was a flaw in the ranking.

Too many lawyers–or not enough?

An op-ed in the New York Times by Clifford Winston of the Brookings Institution proposes doing away with the barriers to entry–namely, law school and the bar exam–to becoming a lawyer:

What if the barriers to entry were simply done away with?

Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.

This is not a new idea, of course. But I thought Mr. Winston stated the case against lawyer regulation rather well.  Any thoughts in response, Mr. Gillette?

Lots of people have lots of thoughts about law school

The New York Times hosting a discussion called "The Case Against Law School" in its current "Room For Debate" feature.  Some highlights:

Bryan Garner -- famous teacher of legal writing -- argues that law schools should teach more legal writing.

Our friend George Leef also makes an appearance, arguing again that law school would be better if going to law school were unnecessary: "if [law schools] had to compete against other modes of legal education, costs would fall and efficiency would rise."  It is unclear to me why the hundreds of law schools and 50+ different state bars fail to create for the requisite competition.

University of Chicago Law School Professor Geoffrey Stone counters that one cannot possibly "learn to think like a lawyer" without at least three years of formal legal eduction.  (Interestingly, according to his bio, Prof. Stone graduated from law school in 1971, then clerked for two years (including one year for Justice Brennan) and joined the U of C faculty in 1973.  Thus, clerking aside, it is not clear that he has ever actually been a lawyer with clients, though he is definitely the man when it comes to teaching people how to think like one.)

Professor Kevin Millard thinks that law school is just too darn practical. Rather than teaching people how to be lawyers (or even necessarily how to think like them), Prof. Millard thinks law school "should emphasize educated citizenship." Remember -- this is a post-graduate education. One wonders what high school, much less college, is for.


Etc.

The solution to the problem of too many lawyers: more lawyers!

I recently read a curious essay called "The Secret is Out About Law Schools," by George Leef.  The primary thrust of the article is to comment on the recent focus on whether going to law school is a good idea.   Much of the article expands on the anecdotes in this widely read New York Times article by David Segal (titled "Is Law School a Losing Game?").  But he concludes with a pointed criticism of that article:

Where the article disappoints is its failure to thoroughly diagnose our glut of lawyers problem.

On its face, this seems like an unfair criticism.  Segal's article could be neatly summarized, in fact, as a thorough diagnosis of the problem with our glut of lawyers -- lots of them sitting around earning nothing while their student debts come due.

But I think the confusion may be in Leef's tortured syntax.  I think when he says Segal failed to "diagnose our glut of lawyers problem," he is not saying that it is a problem that there is a glut of lawyers; he is saying this glut of lawyers has a problem--and that problem was only that they had to go to law school to become a lawyer.

The reason I think this is what Leef means is that his solution for the problem, as he diagnoses it, is not to discourage people from becoming lawyers.  No, his solution is to make it easier for people to become lawyers:

the right move is to open this market up to competition. States should allow individuals to attempt the bar (passing which, incidentally, is itself neither necessary nor sufficient for competence as a lawyer) no matter where or how they have studied law.

So his counter-intuitive recommendation for a market already saturated with unemployed lawyers is more competition from even less qualified new lawyers.

How does this make sense?  It makes sense, to Leef at least, because letting people become lawyers without going to law school would mean that people could become lawyers without racking up all that crushing debt.  In other words, it would be much less risky to try to become a lawyer.

One problem with this solution is that it doesn't actually do anything to help the many unemployed lawyers that are already out there -- the ones that had to go to law school and accumulate all that debt.  In fact, if Leef had his way the situation would become even worse for that cohort -- because a fresh wave of debt-free new lawyers could flood the market and afford to work for less money.  So maybe Leef has diagnosed the problem, but his medicine seems to make the disease even worse.