Author: Scott Moss


Announcing the Moss Law School Rankings: Harvard #1, Yale #2!

Congratulations to Harvard on ranking #1 in the newly minted Moss Law School Rankings! Below are the raw statistics, which I explain below:

#1: Harvard (7 points)

#2: Yale (4 points)

#3: Tulane (3 points)

#4: NYU (2 points)

#5: Georgetown (2 points)

#5: Cincinnati (2 points)

#5: Rutgers (2 points)

#5: Pepperdine (2 points)

#5: Louisiana State (2 points)

#10: Fordham (1 point)

#10: Washington & Lee (1 point)

My ranking is unorthodox, I admit, but all the great statistical innovations yield unintuitive outcomes, no? Let me explain my methodology.

Read More


How Will YOUR Field of Law Change?

Blogging maniac and labor/employment law guru Paul Secunda (D-Milwaukee) has a great post up about how an Obama administration might affect various aspects of labor and employment law. As a labor/employment guy, I find Paul’s analysis fascinating — but I’d learn more from folks posting about fields I don’t know as well.

So please post a comment to tell me and your fellow Concurring Opinionators: How is your field of law or policy likely to change in an Obama administration? Feel free to discuss federal agencies, legislation, the judiciary, public opinion, or any other aspect of how Obama’s victory might affect a field in which you have expertise, or just a passing interest. Alternatively, feel free to post a question (like I’m doing) about a field you don’t know (e.g., “how will postal rates for bulk shiipping change?”). Just to let the ball get rolling, I’ll refrain from expressing opinions of my own until some comments arrive.


Election Watching Guide, Part II: for the real geeks (spreadsheet attached)

After my post of poll closure times and Senate races, I got an email from a friend who (probably to make fun of me) asked whether I’d share my electoral vote spreadsheet (because I had one in 2004). Well, yes, I do have one… here it is. Basically, it just lets you tabulate electoral votes, moving states from the “swing” category to the Obama or McCain category, as the networks call the states; it also lists the Senate races just so you can keep a count of how many switch parties. Happy spreadsheeting, my fellow election geeks!

Download file


The Concurring Opinions Watching Election Results (COWER) Guide

Thanks to Dan & the gang for inviting me back. For my first post, I’m keeping it light: to help me make sense of the election returns, I’ve tooled around the web to gather state poll closing times, which I’m listing below along with each state’s recent polling average (from and number of electoral votes; below that I’ve posted lists of which Senate races have a decent chance of yielding a party switch. Basically, you can make this the home version of the red/blue map game that Chuck Todd, John King, et al., will be playing all night; see if Obama is or isn’t picking up the electoral votes (EV) he needs in the first hour or two or three of poll closures. (Disclaimer: Because I’m not a profrssional at this, I may well have gotten some of the below wrong; please post any corrections in the comments, and I’ll try to get on it — though I’ll be pretty swamped all Election Day, so I can’t promise a promt fix to any errors, sorry.)

Electoral Vote Counts:

• Obama’s EV from the Kerry ’04 states: 252 (includes PA but not Bush ’04 states Obama may win)

• Obama’s EV from the Kerry ’04 states plus IA+NM (the Bush ’04 states Pollster is listing as “solid blue” for Obama): 264

• 11 possible “Bush ’04 swing states,” ones Obama has a shot at picking up: CO,FL,GA,IN,MO,MT,NC,ND,NV,OH,VA

• Obama needs 6 more EV from the 11 possible Bush ’04 swing states (above), or 27 more EV if McCain wins PA

Poll Closing Times for the key Bush ’04 states and PA:

(all times Eastern)

7:00 pm:

• Indiana (M +0.5): 11 EV

• Virginia (O +5.7): 13 EV

• Georgia (M +2.9): 15 EV

7:30 pm:

• North Carolina (tied): 15 EV

• Ohio (O +3.8): 20 EV

8:00 pm:

• Pennsylvania (O +7.7): 21 EV

• Florida (O +1.8): 27 EV

• Missouri (O +1.4): 11 EV

• North Dakota (O +3.1): 3 EV

9:00 pm:

• Colorado (O +6.7): 9 EV

• Nebraska (?): divides its 3 EV by Congressional district; Obama may have a shot at the 1 EV in the Omaha district (no recent polling I know of that district)

10:00 pm:

• Nevada (O +6.8): 5 EV (may count quickly b/c over 70% of state already voted)

• Montana (M +1.9): 3 EV

Senate Races: Possible D Pickups, with recent poll data in parentheses (all are R seats that could switch to D; there are no D seats in which the R is within 10 points in the polls)

• Almost Certain Switches: VA (D+28.2), NM (D+16.4)

• Very Likely Switches: AK (D+4.9), NH (D+7.7), CO (D+10.4), OR (D+5.9)

• Possible Switches (slightly better than 50/50 shot): NC (D+4.1), MN (D+1.9)

• Iffy (slightly worse than 50/50 shot): MS (R+5.0), KY(R+3.1), GA (R+3.8)


AALS’s Low-Quality Mailing Lists & Unresponsiveness: A Lesson in Bureaucratic Neglect

It’s commonly known that when law profs want to mail out reprints of their articles, the only available mailing list is through AALS, which provides lists only (1) at a high cost (and they try to “catch” professors who try to re-use a list they buy) and (2) of extraordinarily poor quality — e.g., prof names are in all caps and not in separate columns for “first” and “last”, so you can’t (a) do a decent mail merged letter or (b) even sort by last name.

Point (1) — high cost — might be tolerable if not for Point (2); if AALS wants to finance itself by charging a lot for each mailing list use, fine, but at least they should help rather than hinder (with their low-quality lists) members who are trying to engage with other members by sending out mailings of article reprints.

I also can’t fathom why AALS doesn’t just produce a good list (e.g., separate out professors’ first and last names into different columns in Excel — not rocket science, folks), which doesn’t seem more expensive than a bad list. I suppose that changing the database program would be a one-time labor expense, but I also know they’d get more profs buying lists that don’t suck; I know profs who have their secretaries type in mailing lists rather than rely on AALS’s incompetent list compilation. Only a monopoly like AALS could care so little about the quality of its product.

I emailed AALS about the problems with their mailing lists on January 19th (my email is in italics below); within hours the addressee responded (to her credit), “Thank you for your informative email. I have forwarded your message to the appropriate people and they will be responding to you in the near future.” I have received no response since then. The “appropriate people” are behaving about as I expected — not “appropriate[ly]” at all for an organization that exists to serve professors, not (as they seem to think) the other way around. Unfortunately, this sort of bureaucratic neglect and incompetence is what you get from most organizations that think they have monopoly power and a steady supply of funds (e.g., tax dollars, or dues from law schools that can’t really opt out).

Read More


Getting Smacked Down When Trying to Propose a More Efficient Contract

You might think a real estate brokerage would being offered a more generous commission, but you’d be wrong. I’m working on selling my house, and I met with Very Big Brokerage, whose standard form explains their commission: 6%. I made a counteroffer, which I knew was unorthodox but thought they’d like. They thought my house was worth $320K, so I proposed that they get 9% of the amount of the sale price above $90K. So if they sell it for $320K they envision, they get not the $19.2K they proposed (6%), but $20.7K (9% of price-$90K). { Note: 320 and 90 aren’t the actual numbers, but I kept the proportions the same from the actual numbers. }

I wanted a higher marginal rate (9%, not 6%) so they’d have more incentive to maximize sale price: each additional $10K would net them $900, not $600. I made the starting point low, $90K rather than $106.6K (1/3 of anticipated sale price, the “revenue neutral” threshold for increasing the commission percent by half), just as a kicker to them, to make them more likely to agree to my plan.

I thought this would be Don Corleone’s proverbial “offer they can’t refuse,” but apparently the appropriate cultural reference wasn’t Marlon Brando’s Godfather, but Mike Myers’s Lothar of the Hill People: “It is a good idea, but it is a new idea. So we fear it and we must reject it.” (Incidentally, does anyone have a link to this quote? I can’t find anything, which shows the obscurity of this early 90s second-rate Mike Myers character I like.) My broker said she liked it but her boss didn’t; the two specific problems she mentioned are (1) payroll would have a hard time processing this, and (2) they often have to split commissions with other brokers, which would be hard with an unusual rate. (I won’t waste blog ink rebutting these rationales.) The mischief-maker in me wanted to say, “it’s my deal or no deal,” and I bet they’d’ve budged. But I liked my broker, and she would’ve hated me starting a pissing contest, which might’ve jeopardized the whole point of my plan — to optimize her incentive to work on my behalf.

But there’s a serious point here: a win-win deal was rejected on inane bureaucratic grounds by a major, successful capitalist enterprise that should understand commissions and valuations far better than I. Two of my fields are economics and employment discrimination; a lurking question at the intersection of both fields is: why would a business discriminate, an inefficient decision to turn away good talent? There are several answers (unless you’re Richard Epstein, in which case the simple answer is, “firms don’t discriminate, or they do and it’s efficient, and in either case we don’t need discrimination laws”), but the one illustrated by my broker story is: just as good people do bad things, good companies do dumb things due to a combination of managerial laziness, risk-aversion, status quo bias, etc. Some of the most successful employers subvert themselves by rejecting talented workers, and some of the most successful realtors subvert themselves by rejecting a great deal that almost certainly would net them more money and maximize their brokers’ incentives to maximize sale price.


Constitutional Law & Institutional “Tailoring”: My Contrarian View

I’ve just uploaded to SSRN my latest article, which I wrote and presented as part of a February UCLA Law Review Symposium on “Constitutional Niches: The Role of Institutional Context in Constitutional Law”, Prisoners and Students and Workers – Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine. (In January, I’d linked a blog post to a much more preliminary draft in advance of the conference; this is a much more complete draft, and editing is just starting, so I’d love any comments!)

With the Symposium focused on “The Role of Institutional Context in Constitutional Law, my paper took a slightly contrarian view, arguing that when courts tailor doctrine to the needs and characteristics of particular institutions (like public schools, prisons, and workplaces), courts tend to overstate the uniqueness of those institutions. This is dangerous in the First Amendment context, because when courts overstate the unique institutional needs of, say, prisons, they’ll end up allowing too much restriction of speech on an exaggerated “prisons are special” theory. The basis for my conclusion that courts are exaggerating, not just recognizing, institutional uniqueness is a “pL“-type risk analysis of the arguments that prisons, schools, and workplaces face unique risks from dangerous speech.


In Defense of the Scooter Libby Jury

This is the latest question from the Scooter Libby jury:

[I]s it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt?

I had to read that at least twice before I understood it, probably because of the double negative, which really becomes a triple negative: asking is there reasonable doubt is itself a “negative” question. Judge Walton also was uncertain what “humanly possible” meant, so he wisely asked the jury to clarify.

The obvious cheap shot is to mock the jury for its surprising requests and slow pace:

* Re this question about reasonable doubt: “It’s really a very commonsense concept,” says NRO’s [National Review Online’s] Andy McCarthy, a former federal prosecutor who served with Patrick Fitzgerald in New York. “If you’re down to parsing it, it’s almost like you’re dealing with a jury that is asking why is the sky blue.”

* Re the jury asking a different question earlier but then retracting it: “Never mind,” the ever-snarky Slate paraphrased the jury as saying.

* Re the jury’s desire for large quantities of office supplies: “They wanted a large flip chart, masking tape, Post-it notes and a document with pictures of the witnesses.”

* Re the sheer amount of time the jury is taking — currently deliberation day nine: “Other juries have settled far more complex cases in less time…. [I]t appears that some jurors might have gotten so deeply entangled in the minutiae of the case … that they have lost sight of the question before them.”

I’m no criminal law expert (“I’m just a cave man…”), but color me impressed with, not disdainful of, the Scooter Libby jury. At this point all we can rule out is “clear-cut unanimous verdict,” and I’m not 100% sold on either side here myself, but this jury strikes me as one taking its job very seriously.

To the extent the jury is having trouble, I blame the legal system’s oddly Utopian fiction that jurors, untrained in law and often entirely uneducated, can remember vast quantities of evidence and legal instructions without the sort of detailed, computerized notes that judges and lawyers typically need to keep their facts and law straight. How well would my students understand the law I’m teaching them if I ran my class this way: no notes, no reading, just Moss lecturing at them, uninterrupted, for two or three class sessions? My guess is that they might have a few follow-up questions, some of them difficult for me to understand. Honestly, when I cover material in class that’s new and difficult, I’m sometimes disturbed if I don’t get questions — and I’d sure be disturbed if students didn’t seem to be taking notes.

Jury confusion, it seems to me, falls into the old category, “there are no bad teachers — only bad students.” We’ve chosen to have non-lawyers decide important criminal cases, and with that decision comes a responsibility to provide a lot more support for their work than we usually do. The Scooter Libby jury’s give-and-take with the judge, and its need for supplies, evidences the kind of active learning and processing of information that, frankly, we probably see far too little. In short, it isn’t a problem that the Libby jury is making extensive requests of the judge; it’s probably much more of a problem that more juries don’t.


A Simple Fix for Judges’ Salaries: Better Regional Cost-of-Living Adjustment

[ I started writing this as a comment to Frank’s post, but it got too long. ]

I’m tempted to reiterate my whole blog post mocking Judge Luttig’s salary complaint, but I’ll limit myself to an excerpt:

Can someone point me to the folk song about the guy who couldn’t afford college for his two young’uns because he earned only $3.4 million over 20 years as a high-level judge? … I do not have Luttig’s expenses, and I’m a fairly frugal guy, so let me use the soapbox of Prawfsblawg to make President Bush this offer: I’ll do the job for just $170,800, which means a $1,000 savings for the American people!

My serious point was to express doubt about the empirical assertion Justice Kennedy is now making: “I’m losing my best judges” because of low salaries. I just don’t buy it; even if there are scattered examples, I doubt that the White House can’t find a few dozen amazingly qualified nominees a year fromamong the million lawyers in the country.

Part of my skepticism is this: I may not believe judges’ self-reported reasons for leaving the judiciary. Yes, Luttig’s departure is a loss if we want the best and brightest on the bench. But consider his timing: he quit shortly after the second time President Bush passed him up for the Court in favor of two other white male appellate judges. By then, Luttig had to realize Bush wasn’t going to appoint him: (1) any third Bush nominee very likely would be a women or minority; and (2) Bush probably passed him over for a real reason: most likely, that Luttig is a “small-gov’t” conservative who once wrote an opinion that would have curtailed executive power whereas Alito and Roberts had a record of favoring broad executive and prosecutorial power — Bush’s primary goal with nominees, as evidenced by the nomination of Harriet Miers (who had no abortion record but a strong record of helping the White House seek broad presidential power).

This timing was reminiscent of Robert Bork’s departure from the bench a year after his Court nomination failed. Maybe this “I didn’t make it to the Supremes” story isn’t inconsistent with the “low salary” story — e.g., “if I’m not making it to the Court, I’ll cash out.” Even if so, does anyone think a raise from $171K to, say, $205K (a 20% jump, probably more than Kennedy hopes for) would’ve kept Luttig from going to Boeing once he gave up hopes of becoming a Justice?

There are two arguments for higher judicial salaries I might buy, the first being Frank’s point that we might get a more diverse judiciary with higher salaries, because we could attract those who became lawyers without family wealth and hold lower-paying jobs (legal aid, prosecution, etc.). But this is an empirical question — are many middle-class and/or minority lawyers in fact not pursuing judgeships for salary reasons? I’m dubious.

Second, maybe we need higher cost-of-living adjustments in particular cities with especially inflated salaries and housing costs. Justice Kennedy’s tale of former clerks making more than their judges may happen in NY and DC, but not in most places. E.g., according to the NALP directory, entry-level salaries in many states are about half of NY’s: e.g., Maine (Portland: $71-73K); Nebraska (Omaha: $77-80K); New Mexico (Albuquerque: $70-73K). (These are the first states I looked at, specifically avoiding states with <1 million like Idaho or Vermont.) Even in top-30-population cities like Denver and Milwaukee, former clerks who join big firms don't out-earn their judges. In short, Justice Kennedy's factual premise about lawyer salaries doesn't support the nationwide salary increase he seeks, just some tinkering with cost-of-living salary adjustments for a few big cities. I don't know if that's worth pounding the table before a Senate Committee.


The Big Law Firm Raises: Much Ado About Nothing?

Is it me, or is the frenzy of “wow!” coverage about the big law firms’ salary increases a bit overblown? My memory of law firm salaries goes back to 1996, when the New York standard was $80,000. Now, in 2007, it’s $160,000 — exactly double over 11 years, which means that over time, big law firm salaries have increased 6.5% annually. That’s a decent rate of increase — it beats the 3-4% rate of wage growth for U.S. wages generally — but it’s not absurdly high.

Yes, $145K to $160K is a jump of just over 10% — but big firms tend to follow (and precede) big raises like this with a few years of no raises. That’s how the average raise is just 6.5% despite occasional jumps like this, or like the not-long-ago $125 to $145 raise; as (one of the few sources to get it right) explains:

[The new] increase will surprise many in the legal community because it comes so soon after the new $145,000 standard was set … last February. At that time, the starting salary had been $125,000 in New York for over five years.

I’m surprised that this coverage is so shallow and unperceptive; I think it’s the result of two problems. First is the standard media bias — not left/right bias, but “Big Story” bias. Reporting a huge, sudden pay increase is news. But reporting that law firms raised their pay, pursuant to their long-term practice of alternating substantial raises and stagnation … yawn, I even got bored writing that sentence. That’s why we get reporting like the following:

Second, I think law students feed into the frenzy because their perspective only goes back one or two years. They don’t see the repeated cycle — stagnation/jump/stagnation — just one “jump”, which makes that raise look special, unique, and huge.

I don’t have any major social comment here; I just wanted to deflate the “WOW” bubble I’ve been hearing from, among others, some of my own students….