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.

Four Futures of Legal Automation

BarbicanThere are many gloom-and-doom narratives about the legal profession. One of the most persistent is “automation apocalypse.” In this scenario, computers will study past filings, determine what patterns of words work best, and then—poof!—software will eat the lawyer’s world.

Conditioned to be preoccupied by worst-case scenarios, many attorneys have panicked about robo-practitioners on the horizon. Meanwhile, experts differ on the real likelihood of pervasive legal automation. Some put the risk to lawyers at under 4%; others claim legal practice is fundamentally routinizable. I’ve recently co-authored an essay that helps explain why such radical uncertainty prevails.

While futurists affect the certainties of physicists, visions of society always reflect contestable political aspirations. Those predicting doom for future lawyers usually harbor ideological commitments that are not that friendly to lawyers of the present. Displacing the threat to lawyers to machines (rather than, say, the decisionmakers who can give machines’ doings the legal effect of what was once done by qualified persons) is a way of not merely rationalizing, but also speeding up, the hoped-for demise of an adversary. Just like the debate over killer robots can draw attention away from the persons who design and deploy them, so too can current controversy over robo-lawyering distract from the more important political and social trends that make automated dispute resolution so tempting to managers and bureaucrats.

It is easy to justify a decline in attorneys’ income or status by saying that software could easily do their work. It’s harder to explain why the many non-automatable aspects of current legal practice should be eliminated or uncompensated. That’s one reason why stale buzzwords like “disruption” crowd out serious reflection on the drivers of automation. A venture capitalist pushing robotic caregivers doesn’t want to kill investors’ buzz by reflecting on the economic forces promoting algorithmic selfhood. Similarly, #legaltech gurus know that a humane vision of legal automation, premised on software that increases quality and opportunities for professional judgment, isn’t an easy sell to investors keen on speed, scale, and speculation. Better instead to present lawyers as glorified elevator operators, replaceable with a sufficiently sophisticated user interface.

Our essay does not predict lawyers’ rise or fall. That may disappoint some readers. But our main point is to make the public conversation about the future of law a more open and honest one. Technology has shaped, and will continue to influence, legal practice. Yet its effect can be checked or channeled by law itself. Since different types of legal work are more or less susceptible to automation, and society can be more or less regulatory, we explore four potential future climates for the development of legal automation. We call them, in shorthand, Vestigial Legal Profession, Society of Control, Status Quo, and Second Great Compression. An abstract appears below.

Read More

12

More on Signed Appellate Opinions

Paul Horwitz has written a characteristically thoughtful post over at PrawfsBlawg on the issue that I raised the other day about whether we should still permit per curiam opinions.  I have a couple of additional observations on my end:

1.  Without signed opinions, outsiders would find it hard to assess the quality of individual appellate judges.  This matters when you want to think about possible candidates for promotion.  Instead, you’d have to rely on insider information that would be less reliable (“I heard from so-and-so’s law clerk that Judge X wrote that opinion.”).

2.  There is an exception to Point #1.  When judges sit on panels of three, the dissenter would always be named.  Thus, what we’d know about appellate judges would come largely from their dissents.  Or one could imagine more separate concurring opinions if that was the only way to get one’s name out for public consumption.  I’m not sure that this be a great system for assessing judges.

3.  Why do people care that a given opinion was written by Henry J. Friendly?  I think the answer is that they think that opinion will just be better.  While all panel opinions are formally equal, that does not mean that they are equally useful.  Knowing the judge’s reputation (good or bad) reduces search costs for attorneys and scholars, and that matters in the real world.

One last thought–there is a strong argument in favor of anonymous publication as a way of forcing people to focus on the arguments and not on the personalities.  (Hello, Publius.)  Of course, that argument could apply just as well to law review articles as it does to opinions.

 

 

 

0

FAN 63.3 (First Amendment News) Court denies cert in abortion ultrasound case despite circuit split — Balkanization of 1-A rights?

Twenty-four states now require an ultrasound to be performed or offered to a woman prior to the performance of an abortion. Five states have enacted essentially the same display-and-describe requirement at issue in this case, and an additional four states require a physician to provide a simultaneous explanation of an ultrasound image upon a woman’s request. — Cert. Petition of Attorney General of North Carolina

This past Monday the Court denied cert. in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial. The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First and Fourteenth Amendment rights of the provider.

In his cert. petition, the attorney general of North Carolina argued that the ruling in the Fourth Circuit sustaining the First Amendment claim ran counter to those in the Fifth and Eighth Circuits.

In their reply brief, the counsel for the Respondents refuted that claim. “There is no circuit conflict warranting this Court’s review,” they argued, “because no court has ever considered, let alone upheld, a law imposing as ‘unprecedented’ of a ‘burden on the right of professional speech’ as the [North Carolina] Requirement does. . . . And all courts—including the Fifth and Eighth Circuits—agree that a state regulation compelling physicians to engage in ideological speech [– as contrasted with truthful, non-misleading information relevant to a patient’s decision to have an abortion –] is subject to searching First Amendment scrutiny.”

Moreover, they argued that “the regulations approved by the Fifth and Eighth Circuits—which both courts found to be non-ideological and subject only to rationality review — are fundamentally different from the Requirement in ways that bear directly on the appropriate level of scrutiny. No court has upheld a physician-speech regulation as uniquely intrusive as the Requirement” contained in the North Carolina law.”

Consider in this regard what Judge Harvey Wilkinson stated in his opinion for his Fourth Circuit panel: “Insofar as our decision on the applicable standard of review differs from the positions taken by the Fifth and Eighth Circuits in cases examining the constitutionality of abortion regulations under the First Amendment, we respectfully disagree. . . . With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.”

Will a majority of the Court be as quick to sustain a First Amendment claim in “pro-choice” abortion case as it was in McCullen v. Coakley (2014), a “pro-life” abortion case?

Too fine a distinction? 

Is the distinction proffered by the counsel for the Respondents too fine or too nuanced to be of any meaningful import in future cases? If so, does the cert. denial in Walker-McGill v. Stuart point to a balkanization of constitutional rights in this area? In other words, is the ideological warring we have witnessed in the abortion context now spreading to First Amendment law? Can we now expect speech related to abortion to be dragged into this ideological morass replete with all the confusion that comes with that?

Fewer than four votes

David Horowitz

David Horowitz

However that may be, the Court’s cert. denial seemed somewhat surprising. As David Horowitz, the executive director of the Media Coalition, observed: “I’m very surprised that this was a case that no one could find four votes for. I would’ve thought one side or the other could have done that. The failure to do so suggests, at least, that Chief Justice Roberts and Justice Kennedy do not want to take the case, or one of those two and one of the liberal Justices felt likewise.”

See also Adam Liptak, “Supreme Court Rejects North Carolina’s Appeal on Pre-Abortion Ultrasounds,” New York Times, June 5, 2015, and “Supreme Court Won’t Revive North Carolina Abortion Law,” Associated Press, June 15, 2015

1

Conspiracy in the Lincoln Assassination Trial

On Friday, the DC Circuit issued its decision in Al Bahlul v. United States.  The opinion held that Congress exceeded its Article I powers by authorizing a military commission to try a Guantanamo detainee for the crime on conspiracy.  I cannot claim any special expertise on this question, but the dueling opinions (Judge Rogers for the Court and Judge Henderson in dissent) do address one point that I know something about–the trial of John Wilkes’s Booth’s accomplices.  We are in the midst of the 150th anniversary of that military trial, which I spent a chapter discussing in my biography of Bingham.

The Court declined to rely on the Lincoln assassination military trial as authority for Al Bahlul’s conspiracy conviction, and I think that this was correct.  First, the assassins were not charged with conspiracy.  The actual charge was “traitorous conspiracy,” not conspiring to commit treason.  What is that?  Basically, it was a charge invented just for them to avoid Article III’s requirements for proving treason while still conveying the idea that they had done something treasonable.  The dissent (which oddly spends a lot of time citing Chief Justice Rehnquist’s book that discusses the Lincoln trial, rather than the primary sources), errs in reaching the opposite conclusion.

Moreover, the Lincoln assassination commission was filled with irregularities and thus is not a precedent people ought to read broadly.    The District Court opinion that rejected the habeas corpus petition of some of the convicted men was not convincing, and even if it was right the special circumstances presented by the murder of the President in wartime are far removed from the cases of the Guantanamo detainees.

2

FAN 63.2 (First Amendment News) — Court denies review in compelled ultrasound image abortion case — First Amendment claim stands

Today the Court released its orders list. The Justices denied review in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial.

The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First Amendment rights of the provider.

The Fourth Circuit stuck down the law (see here) on First Amendment grounds. The lower court opinion was authored by Circuit Judge J. Harvey Wilkinson.

2

Why privacy matters even if you don’t care about it (or, privacy as a collective good)

privacy is...

“How much do people care about privacy?” This is a key, enduring, question in ongoing debates about technological surveillance. As survey after survey regarding changing privacy attitudes is presented as proof that privacy is dead, one might wonder why we should bother protecting privacy at all.

One common answer is that the privacy surveys are wrong. If survey-makers only asked the right questions, they would see that people do actually care about their privacy. Just look at the most recent Pew Research Survey on privacy and surveillance. We should protect privacy rights because people care about it.

While this answer is fine, I find it unsatisfying. For one, it’s hard to draw firm conclusions about privacy attitudes from the surveys I’ve seen (compare the Pew survey linked above to this Pew survey from the year before). Those attitudes might ebb and flow depending on the context and tools being used, and social facts about the people using them. More importantly, though, while privacy surveys can be very valuable, it’s not clear that they are relevant to key policy questions about whether and how we should protect privacy.

This leads to what I think is the better (but perhaps more controversial) answer to the puzzle: privacy is worth protecting even if turns out most people don’t care about their own privacy. As counterintuitive as it seems, questions about privacy and surveillance don’t–and shouldn’t–hinge on individual privacy preferences.

That’s because questions about privacy rights, like questions about speech or voting or associative rights, are bigger than any individual or group. They are, instead, about the type of society we (including all those survey-takers) want to live in. Or as scholars have suggested, privacy is best thought of as a collective rather than merely an individual good.

Privacy is like voting

Many of our most cherished rights, such as expressive, associational, and voting rights, are understood to protect both individual and collective interests. The right to vote, for example, empowers individuals to cast ballots in presidential elections. But the broader purpose of voting rights–their raison d’être–is to reach collective or systemic goods such as democratic accountability.

Read More

0

What the Debate about Red v. Blue Families is Really About

David Leonhardt strikes again.  He links two parent families to upward mobility, and notes that two different dynamics produce two parent families: high income and religion.  He then replicates maps that purport to show these linkages.

There are two problems with these single minded linkages.  First, the geographic analysis of two parent families and the connection to social mobility is meaningless without taking race into account.  The striking thing about Utah, Idaho, the upper Midwest and New England – all areas with relatively low rates of single parent families – is that they have much smaller African-American and Latino populations, and white families tend to have strikingly different demographic patterns than non-white families, in part because of differences in socio-economic status.   The second chart Mr. Leonhardt’s column includes captures this point even more effectively.  It shows the least social mobility – and some of the highest rates of single parenthood – in a belt that runs through heavily African-American communities, primarily in the South.  These communities are as notable for their high rates of poverty, segregation, and isolation.  There is sophisticated demographic analysis underlying these figures, but Mr. Leonhardt’s column doesn’t capture it.   Instead, he largely dismisses the influence of racial factors, particularly their role in compounding the effects of poverty and isolation, as “hardly the only explanation,” while most observers would make it a critical part of the explanation.

Second, the link between single parent families and social mobility raises the question of which comes first – whether the link is a unidimensional one of single parent families causing low social mobility or poor, isolated communities causing low high rates of single parent families.  The research on this is somewhat complex.  Virtually all studies show that, all other things being equal, two parents are better than one.  Yet, the modern examination of upward mobility also indicates that children in single parent families do better in wealthier communities, eliminating some of the disadvantage that comes from single parenthood itself.  In a similar fashion, African-Americans, irrespective of family form, do better in integrated, middle-class communities.  Poor, isolated, and segregated communities on the other hand tend to suffer disproportionately from factors that increase rates of single parenthood, including high rates of unemployment, underemployment, and employment instability, racially targeted police practices that increase the portion of the male population in prison or on probation or parole, and higher rates of domestic violence and substance abuse.

In our work on ideological division (Red Families v. Blue Families) and class influences on family formation (Marriage Markets), we tried to capture the dynamic forces underlying these trends.  We argued that what “blue” family patterns reflect is an adaptation to the economic forces that reward investment in women.  In this system, couples defer childbearing until their educations are complete and they establish sufficient employment and financial stability to manage children.  This system, as the Leonhardt column indicates, works and has taken hold in the wealthier parts of the country.  What we described as “red” is a religiously based system that still celebrates marriage at younger ages.  It, too, “works” for couples embedded in religious communities and for men who still have stable employment.

The problem with both systems is what they offer for communities where good jobs have largely disappeared.  In these communities, church attendance has declined with the loss of employment, and both divorce and non-marital births have risen.  Some research indicates that the persistence of young average ages of marriage increases the divorce rates of the people in the same communities who also marry young but are less likely to attend church.  And the major factor affecting a recent decline in non-marital birth rates nationally is a decline in fertility – i.e., a blue strategy that involves greater use of contraception and more delay in childbearing – rather than more marriage, though the married couples who deferred childbearing during the Great Recession are now having children at later ages increasing the overall percentage born within marriage.

Leonhardt’s column, however, misses these demographic subtleties along with the issue of what the red/blue divide is really about.  We argued that what underlies “blue” is a modernist effort to adjust to changing economic realities.  Elites, whether in red or blue states, have done so effectively; the battle is over how to translate their systems into something that works for those at the losing end of economic changes.  “Blue” prescriptions emphasize giving women more autonomy; that is, more control of their sexuality and greater ability to avoid unplanned pregnancies and unwanted births.  For those who want to have children, however, blue policies would also provide greater support for the children who result, producing overall a smaller, better educated population.  “Red” prescriptions, which celebrate religion and marriage, also tend to work by limiting women’s autonomy.  They make it harder to access contraception, much less abortion, and favor limiting women’s ability to go it alone with respect to childrearing.  What no emphasis on the family alone can do, however, is bring back the jobs that once supported two parent, working class families.  Leonhardt’s column, by reinforcing the myth that family form somehow causes low social mobility, is a disservice to the real debate about what underlies family change.

13

Per Curiam Opinions

The decision of the Fifth Circuit–sure to be before the Supreme Court next Term–upholding the new Texas abortion regulations raises the question of whether per curiam opinions should still exist.

If a decision is truly a joint work (say by all three members of a panel), then perhaps that title makes sense. I think the “Joint Opinion of X, Y, and Z” is better, but that’s a semantic point.  Appellate courts, though, should not be calling an opinion “per curiam” to shield its author from identification.  We deserve to know who wrote a published opinion.

The only plausible rationale for not identifying an opinion’s author is that in organized crime or terrorism cases judges may fear retaliation.  But this is a rare circumstance.  More often what they probably fear is public scrutiny and accountability.