Category: Law School

Scholarship and Mid-Career Self-Assessments: A Brief Reflection on Simkovic’s What Can We Learn from Credit Markets?

Chris J. Walker has written a very helpful series of posts for young professors on “how to become a voice in one’s field.” The last addressed one of the hardest issues: “Am I Asking the Right Questions?” Academic freedom at a professional school comes with serious responsibilities: to choose field(s), to apply methodology well, and to try to establish the importance of one’s findings among one’s peers and (increasingly) among educated publics, as an engaged academic. Both Walker and Michael Rich offer wise perspectives on the dilemmas that inevitably come up during thoughtful reflection on these responsibilities, focusing on a process of discernment.

I also think that we can learn a great deal from the content of successful scholars’ inquiry. Usually, researchers only undertake this type of self-reflection when applying for jobs and preparing research agendas (a mostly private process), or at the end of a career (when a long list of accomplishments may seem too daunting to be relatable to younger peers). But winners of the ALI Young Scholars Medal appear to get invited to give a public talk on their work at an earlier stage of inquiry. Mike Simkovic (whose work I’ve previously praised here) gave such an address in May.

The talk is focused on the questions that led Simkovic to research credit markets. His work helped explain some puzzling aspects of personal finance–for example, why harsh restrictions on bankruptcy imposed in the mid-2000s did not lead to a cheapening of credit. His findings are revealing: consolidation in the credit card industry, as well as confusing contractual terms, helped dominant firms keep the resulting profits, rather than compete them away. As of 2016, even The Economist has caught up to this challenge to laissez-faire orthodoxy–but at the time it was made, complacent assumptions about market efficiency were dominant.

From that inquiry, Simkovic describes a chain of puzzles that led him to challenge widely held preconceptions in corporate, education finance, and tax law. It’s an engaging documentation of a particularly fruitful and insightful trajectory in inquiry.

I recently proposed a paper to the MLA’s annual conference entitled “Beyond the False Certainties of Impact Factors, Altmetrics, and Download Counts: Qualitative & Narrative Accounts of Scholarship.” It arose out of my dissatisfaction with the metricization of accomplishment. As citation counts proliferate, accumulating the ersatz currency of reputational quantifications threatens to overwhelm the real purpose of research–just as financialization has all too often undermined the productive functions of the economy.

Traditional modes of assessment (including tenure letters and festschrift tributes) are an alternative form of evaluation. And an essay like Simkovic’s is an example of a type of self-evaluation that should become more popular among scholars at certain career milestones (like tenure, appointment to full professor or senior lecturer, and, say, every 5 or 10 years thenceforward.) We need better, more narrative, mid-career assessments of the depth and breadth of scholarly contributions. Such qualitative modes of evaluation can complement the quantification-driven metrics now ascendant in the academy.

The State of Legal Scholarship: A View from Health Law

Based on Ron Collins’ post below, I read the interview with Judge Edwards. The judge states:

In order for legal scholarship to be relevant outside the legal academy, law professors should balance abstract scholarship with scholarly works that are of interest and use to lawyers, legislators, judges, and regulators who serve society through legal arguments, decision-making, regulatory initiatives, and enforcement actions.

Fortunately, every legal academic that Nicolas Terry and I have hosted in our 41 episodes of The Week in Health Law has done so. Perhaps that’s a biased sample. But it’s undoubtedly better than the sampling practiced by Justice Breyer, another critic of legal scholarship.

For now, I will take some comfort that, about a year into our podcasting, we have heard from general counsels, attorneys, regulators, and journalists who are big fans of the show–which primarily focuses on the work of legal academics. And I will remain dubious of generalized critiques of legal scholarship, which fail to analyze the merits of particular fields.

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What’s a Trigger Warning?

The public, media, and academic panic over trigger warnings has struck me as a bizarre overreaction. Fueling the growing crisis mentality, Vox published an essay titled “I’m a liberal professor, and my liberal students terrify me” that went viral. Directly relevant to law school professors, Jeannie Suk wrote in The New Yorker that she has had growing concerns about teaching about rape in the emerging trigger-warning culture. I was one of those who expressed doubt about Suk’s position, but also wondered how much difference in our perspectives could be explained by our natural tendency to generalize from our own limited anecdotal experiences.

Thankfully, a lot of research is being done to understand whether the panic over trigger warnings is warranted. The National Coalition against Censorship (NCAC) issued a published report concerning its findings. There are a lot of interesting tidbits including that a lot of requests for warnings come because of religious or moral sensitivities (and not so-called left-wing “political correctness). Overall, the report seems to indicate that the panic is overblown.

Yet, the most shocking finding for me personally was to discover that I was a trigger warning issuer according to the report. This was the definition of a trigger warning used by the NCAC:

… written warnings to alert students in advance that material assigned in a course might be upsetting or offensive. Originally intended to warn students about graphic descriptions of sexual assault that it was thought might trigger post-traumatic stress disorder (PTSD) in some students, more recently trigger warnings have come to encompass materials touching on a wide range of potentially sensitive subjects, including race, sexual orientation, disability, colonialism, torture, and other topics. In many cases, the request for trigger warnings comes from students themselves.

Although I have long given oral statements when covering certain material in Criminal Law (primarily in child murder and rape cases), I started sending out a pre-semester email to students signed up for my Sex Crimes seminar as follows:

My Sex Crimes course is filled with gruesome, horrific, and truly bizarre readings and discussions. As I have told colleagues who are curious about the subject, “once I tell you, you can’t un-know it.” Although I’m guessing that some of you feel that you have heard or can imagine nearly everything we will discuss in class, I’m pretty sure each of you will quickly hear or read something that will upset and/or shock you. I think there is much value in learning outside of your comfort zone, but I want you all to make an informed choice about taking my class. So, if you want to drop the class, let me know so that you don’t get any further emails. I will send out the semester’s readings and your first day assignment tomorrow.

To me, my email is a far cry from what has stoked media controversy. Often, trigger warnings are portrayed as student vetoes or opt-outs from certain assignment that are a critical component of the “death of free speech on college campuses.” And yet my email to students would be counted as a trigger warning in surveys. On the one hand calling my statement a “warning” is entirely accurate. But from my perspective it is simply designed to inform students about the course’s content and doesn’t allow for students to dictate/veto the course structure or materials taught. Given that my warning about the content is true, it seems reasonable for me to communicate that fact ahead of time.

The basic problem of definitions seems very important in deciding whether we should be worried about trigger warnings. Imagine each of these “bad” scenarios:

  1. University requires faculty to put boilerplate language in every course syllabus about objectionable material.
  2. University responds to student requests against a particular professor by suggesting to professor that some warning should be issued.
  3. University adopts a policy that requires faculty members to have an opt-out for students of any assignments that meet certain broad criteria for offensiveness.

The first scenario is hardly ideal but not an enormous threat to academic freedom either. The second could be dangerous depending upon what “suggesting” means. The third is clearly disastrous. It seems to me that these situations should be the focus of our concern. I don’t know of any cases that fit the third scenario. I’m guessing, but am open to new information, that the second scenario is a rarity and often subject to disputed accounts.

Media and researchers should not try to group my simple warning, made voluntarily out of respect for my students, with university requirements that often don’t actually exist in the real world. They are wholly unrelated. But if others disagree and are troubled by what my pre-semester email represents, I welcome comments.

The Larger Debate on Federal Credit Programs

Earlier today I criticized a New York Times proposal regarding law school loans. Whatever you think about the proper cost of legal education, the NYT is off-base, because it ignores the role of private finance in our economy.

Education finance policy is difficult because it raises fundamental issues in political economy and public finance generally. It also only makes sense with some historical context.

Back in the 1970s and ’80s, an anti-tax coalition operated on the presumption that state support for education had to drop. Financialization plugged the resulting hole in funding: responsibility for paying for school shifted from (relatively well-off) taxpayers to students. By the 1990s, private lenders realized that they could make tremendous profits from such loans–particularly if they could privatize profits, while sticking the government with losses. That arrangement became so scandalous by 2010 that it was curtailed as part of PPACA. The federal government directly offers many loans now.

But the private lenders did not simply give up. Current efforts to “reform” federal student loans are part of their much larger effort to shrink federal credit programs. The basic idea is simple: to force the US government to account for its credit programs as if it could and should charge interest rates (and impose terms) prevailing among private lenders.

It’s a strange move, especially since, as Matt Yglesias states, “costs reported in the budget are generally lower than the costs to the most efficient private financial institutions because the government’s costs of funds are in fact lower.” David Kamin has also questioned this accounting tactic. But if it succeeds, there is little rationale for any federal credit program–it will simply duplicate extant private lenders’ work. That redundancy will lead to further privatization of federal credit programs, raising costs to borrowers and diverting more money to the finance sector. It’s not a great outcome for students–but it is a logical outgrowth of reflexive hostility to the type of state intervention that actually could improve students’ finances while maintaining quality.

Dulce et Decorum Est: Critics of Student Loan Forgiveness Rally the Troops

For years, critics of loan forgiveness programs for students have argued that they are a form of “welfare,” when in fact they’re a necessary corrective to the excessively harsh bankruptcy regime imposed on student debt. But the critics are getting a hearing, and guess where the money is probably going:

[A]t some point, there is going to be a deal on appropriations and raising the debt ceiling. There is a lot of pressure to raise defense spending. Some of these student loan items [like the Public Service Loan Forgiveness Program] could wind up on the table in such a deal.

We’ve seen this pattern again and again: 1) create a scare about excessive “entitlement” spending, 2) spur either tax cuts for the rich or reallocation of “entitlement” money to the force or finance sectors, and 3) repeat once excess military spending once again drives budgetary imbalances. The PLSF is a low-cost program designed to promote provision of important services to the underserved. It’s amazing to think, of all the expenditure lines that could be attacked, this was the one chosen. But it is of a piece with larger social trends to shift money away from human services, and toward force and finance.
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The New York Times’ Curious War on Traditional Higher Education

It’s a strange position for America’s “paper of record” to take. Despite its largely traditionally-college-educated readership, the New York Times is constantly publishing articles attacking the value of university degrees. Tom Friedman dismisses them as expensive merit “badges” oft-unrelated to the exact qualifications needed for jobs. The ubiquitous Tyler Cowen blasts ed sector costs and inefficiencies, despite international acclaim for US universities. The author of The End of College has had a high-profile platform at the Times‘s Upshot blog.

All three men tend to characterize traditional college degrees as mere signals, barely (if at all) related to the actual skills, habits, and qualities of mind and character that lead to successful, fulfilling lives. I’ve never seen them grapple with the extensive empirical literature on why education increases earnings. Nor do they tend to respond much to the hard data that their colleague David Leonhardt provides on the costs and benefits of college.

Sadly, there’s just too much money in education disruption narratives for the Times‘s most prominent writers to give up on them. Critics have documented how “influence moved from the $795/$495 per person corporate-sponsored [New York Times Schools for Tomorrow] conference [with the theme Virtual U: The Coming Age of Online Education] to the pages of the newspaper of record.” As Facebook and other tech firms angle to squeeze ever more control over (and compensation from) their “content partners,” those partners in turn seek advertising from similar tech firms in other sectors. That’s one reason you’ll see, for example, long stories (aka “earned content”) about legal technology “disruptors” in legal trade publications, near paid ads for the same firms elsewhere on the magazine or website.

I’ll make one grudging concession to Cowen: he’s long argued that marketing is set to become a much larger part of our economy, and you can see its dominance congealing in the ed space now. “Disruptive innovators” push for more for-profit schools and nano-degrees–even though the former have seen so many scandals, and the latter have barely been tested. But what these newfangled entrepreneurs lack in quality, they make up for in marketing budgets. The figures exposed a few years ago were shocking:

At the end of July 2012 the Senate Committee on Health, Education, Labor and Pensions presented an 800-page report, the culmination of a two-year investigation into ‘for-profit’ higher education institutions.​ The senators found that at such institutions a mere 17.4% of annual revenue was spent on teaching, while nearly 20% was distributed as profit (the proportion spent on marketing and recruitment was even higher).

All those marketing dollars, flowing to Google or Facebook as conduit, or publications like the New York Times as content, get attention. It’s no wonder why leading technologists and journalists think it’s so important to promote the disruptors. But they may find their own brands tarnished as the harsh realities of techno-utopian ed reform gradually become more apparent.

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LSA Retro-Recap Day 0: I Miss My Friend

Hello from Seattle! Over the next few days, I will describe some of the best things I saw at the 2015 annual meeting of the Law and Society Association (which was held from May 28-31). As I did back in 2013, my plan is to discuss one or two papers with high VOSFOTWOAS— Value Over Season Four Of The Wire Or A Separation.

Before getting to the recap, though, I want to remember Dan Markel. I did not know Dan very well, nowhere near as well as many other law professors or most of the folks who blog here. I met Dan in person exactly 5 LSA’s ago, in Chicago. I can remember the moment when I first saw him. He walked into a conference room with what I instantly recognized as the sleep deprivation that affects all new parents (and the glow that demarks the good ones). His hand was the first in the air during the questioning period then, as it was in nearly every other session I saw him at. I made a game to myself of trying to beat him to the punch in asking a question; I always lost.

I once read a piece in the New Yorker that, to my memory, said something like: people worry that caffeine will interfere with the real you, but after a while the person you are on caffeine is the real you.* I like to imagine (perhaps without warrant) that the person Dan was at conferences, Conference Dan, was the real Dan. Intense. Reveling in the attention of friends. Generous in facilitating connections. Enthusiastic about your ideas to the point of disregarding the rules of social comportment.

As the yahrzeit of his death approaches and I sit in a bustling hotel lobby, I miss Conference Dan, although this sense loss is infinitesimal compared to the ache that I feel for his family. I wish I had been able to better know Dan outside of these conferences. I still flip through the conference program to see what he is presenting. I schedule time for a Prawsblog happy hour that will not happen. I rush to raise my hand after the chair asks for questions, only to realize that it is alone in the air.

 

*A quick Googling suggests that the line closest line to the one I (mis-)remembered is this one by Malcolm Gladwell: “Part of what it means to be human in the modern age is that we have come to construct our emotional and cognitive states not merely from the inside out–with thought and intention–but from the outside in, with chemical additives. The modern personality is, in this sense, a synthetic creation: skillfully regulated and medicated and dosed with caffeine so that we can always be awake and alert and focused when we need to be.”

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The Civilizing Effect of Legal Training

The cultural cognition project has a new article out on how motivated cognition interacts with professionalism:

This paper reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation problems, however, only the responses of the general-public subjects and not those of the judges varied in patterns that reflected the subjects’ cultural values. The responses of a sample of lawyers (n = 217) were also uninfluenced by their cultural values; the responses of a sample of law students (n = 284), in contrast, displayed a level of cultural bias only modestly less pronounced than that observed in the general-public sample. Among the competing hypotheses tested in the study, the results most supported the position that professional judgment imparted by legal training and experience confers resistance to identity-protective cognition — a dynamic associated with politically biased information processing generally — but only for decisions that involve legal reasoning. The scholarly and practical implications of the findings are discussed.

Kahan and I have gone back and forth about how best to characterize the results of the study. He, modestly, seeks to constrain the inferences to the data and to a push back against the vulgar understanding of the judiciary as merely housing politicians in robes.  I think the study speaks to something larger still — the value of legal education & experience in producing situation sense, which enables lawyers and judges (and, to a lesser extent, law students) to agree on the results of legal outcomes notwithstanding their political and ideological priors. Such legal judgment is, after all, one of the practical skills that law school conveys, and which it ought to boast about.

Taking Human Capital Theory Seriously: Simkovic on “The Knowledge Tax”

Graduate professional education in the US is facing a financing squeeze. Some argue that those learning to become doctors, nurses, engineers, lawyers, and the like should get no help from the federal government, because they tend to earn higher incomes than average. Others question that premise, arguing that past results of grad degrees are no guarantee of future performance. They believe that an impending wave of defaults on federal student loans will raise the cost of federal credit programs.

Nevertheless, each side argues for policy with convergent outcomes. The “grad students will be rich” camp argues for curtailing federal loans, since they believe professionals can handle the higher interest rates on the private market. The “grad students will be poor” camp wants to raise the rates on federal student loans, to build up the already hefty surpluses the government is now making, to prepare for the putative future defaults. In the eyes of both, graduate students are the undeserving recipients of government largesse.

I’m not convinced by either: the “too rich” camp fails to value professional services properly, and the “too poor” camp is relying on controversial accounting techniques. But until I read Mike Simkovic’s recent paper “The Knowledge Tax,” I’d never thought of an even more fundamental distortion at work here: tax policy. Simkovic lays out the problem with characteristic clarity, considering a hypothetical college graduate deciding on (1) attending medical school and practicing medicine; or (2) purchasing a small vacant building and converting it into rental apartments:
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Buffett on Family Business: Beat the Third Generation Curse

warren buffettWarren Buffett is very good at spotting great family businesses. What does he look for? How can his filters help family businesses prosper?

For one, they can mitigate one of the greatest dangers: the third generation “curse.” This refers to how few family businesses survive beyond the third generation, let alone prosper.

An under-appreciated fact about Berkshire Hathaway, the conglomerate Buffett built: virtually all its family businesses boast second or third generation descendants who rival or outshine previous generations. That is rare among family businesses.

So while every family and business situation differs, Berkshire’s two dozen family companies are a good place to look for insight about multi-generational prosperity in the family business.

Studying Berkshire’s family businesses, I found that they are united by the following values. These values are important factors in their success, in the founding generation and subsequent ones.

Family business members, and their professional advisors, whether in law, accounting, or other fields, would do well to ponder these points.

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