PrawfsBlawg

Wednesday, December 11, 2024

Law school applications are way up! Let's wait on the parade

[republished from my Substack. Subscribers welcome!]

Let the bells ring out during this holiday season . . . for American law schools. Especially those schools who fret about enrolling a sufficient number of students and, further, students whose hard and soft measures promise that they will have a good chance of succeeding. Applications are up thus far, way up, and signs point to an abundance of riches for law schools more or less across the board. Moreover, concerns about minority student enrollment, concerns turbocharged by the Supreme Court’s decision restricting the use of racial preferences, are ameliorated by the evidence (at least thus far) that minority applications are up by a considerable margin.

While this is not the space to throw cold water on what is good news for law schools in their business objectives, I urge a pause to at least warn the collective us in legal education not to fall into the too-familiar trap of seeing the currently bullish market as an excuse of complacency, as an opportunity to eschew innovation because business-as-usual apparently is meeting the tenor of the times. Let’s be clear that a run up in applications doesn’t make any serious headway in addressing persistent problems, including:

• Sticky and mainly ignored is the traditional financial aid models of law school, models that invest greatly in merit-based aid for high flyer applicants on the idea that such students will be subsidized by below-median score students who will pay full freight. More applicants might mean larger classes, greater revenue, and therefore some incentive to ameliorate the equity effects of this common form of financial aid engineering. Yet, experience tells us that law schools do not ordinarily expand meaningfully the size of their classes in order to accomplish these goals. And nowhere should this comment be read as urging law schools to necessarily do so. Size matters, and the objectives of law schools to keep their educational program sensibly organized around a certain size so as to improve faculty-student ratio and job prospects for students in a legal marketplace that, while not unpromising these days, is still basically flat at best, should be maintained to the extent possible. However, the challenge is how to address the brute inequities of a system that incentivizes these familiar cross-subsidies from the “bottom” to the “top.” Increasing law school applications shouldn’t blind law schools to the fact that current financial aid problems raise problems to be solved, not excused by the claim that “all schools basically do the same thing” and such;

• Efficiencies and innovation in pedagogy should be important goals, in both rainy and sunny times. Law school curricula continues to remain largely static. The rise of clinical education was, to be sure, an extraordinary development in legal education. But that development is a half century old and the traditional model that puts experiential education as an important complement to, but never really a substitute for, classic doctrinal instruction persists. Perhaps that is how it should be, for innovation doesn’t necessarily mean scrapping the status quo for something altogether different. Disruptive innovation isn’t measured by how many plates are broken immediately; rather, it begins with serious, intentional scrutiny — that is ideologically eclectic and evidence based — of current educational programs and structures, taking account of the rapidly changing demands of the legal marketplace. Such scrutiny should be ongoing; and it is a misnomer to put it into the bucket of episodic curricular “reform.” Reform follows assessment, and deep and broad assessment should be a core element of the ceaseless strategic planning that law schools and universities of which most are a part ought to do — not occasionally, but always. This is as true when application patterns are rosy, as when they are dire. True, big innovations in law school curricula are less necessary as part of advertising campaigns to recruit students from “boring” competitors when the applicant pool is nicely robust. But, after all, public relations is not the primary reason for reassessment and reform; the reason is that law schools aspire to be the best possible engines of coherent, socially and economically relevant, progressive, and efficient legal education. The centrality of this goal ought not to turn on one or two-year revenue projections;

• Viewed overall, law schools should not make the mistake of tying applicant eagerness (is it the Trump bump? is it economic opportunity? is law now a “hot” profession? Who knows!) to agnosticism about what they are getting from their law schools, in terms of curriculum, services, career support, ambition, etc. Two things can be true at once: More young people are motivated to apply and attend law school and, second, these same young people have high expectations and of the law schools they hope to attend. There is at least some ambient evidence that students of the present and near-future are demanding more of their educational institutions. An innovation-minded law school may not viewed best as a school that merely caters to a limited set of student expectations, but, rather, as a school that deeply considers how to create educational schemes and structures that are designed to educate in holistic, pluralistic, and pragmatic ways students who will leave and take roles and positions in the legal marketplace broadly defined, and who will, we should hope, will be attentive to the outsized influence of lawyers in the world. They will be protectors of the rule of law, instruments of justice in the trenches as well as in the meta-design of institutions and constitutional guardrails. Moreover, they should learn well in our law schools about the persistent access to justice crisis that inflicts the U.S. and should think about creative ways in their own careers to address the A2J crisis;

• All of these goals (and others that could be listed) must be considered and hopefully achieved in an ecosystem made up of individual law schools which are relentlessly innovation-minded. A temporary applicant boom should not be an excuse to take the pedal off the metal. On the contrary, while this welcome increase helps shine a spotlight on the state of law schools and, in the minds of deans and others, enables these schools to shine more brightly at least for a while, this is a golden opportunity to consider our predicaments and our promise. An innovation mindset is what is required at the very least.

Posted by Dan Rodriguez on December 11, 2024 at 02:13 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

AALS session on ways to contribute to the work of the Uniform Law Commission

The Uniform Law Commission, the nation's premier organization involved in statutory law reform, is very much on the lookout for promising ideas by legal scholars on uniform statutes.  One commissioner put it to me this way:  "Law review articles come to at the end a conclusion that 'there oughta be a law!' and there is nice avenue for bringing cool ideas to the ULC for study and maybe implementation."  And so the ULC is at the ready to bring your good proposals to the real world.

At this year's AALS, folks from ULC and others will be gathering with any and all interested to talk about the work of ULC, to answer questions, and to brainstorm about the synergies between academic scholarship and practical law reform.  Stewart Schwab (the former dean of Cornell Law) and I have been involved over the last several months in promoting these connections and we encourage you to learn more about ways you might get involved in the good work of ULC.

Here are the details:

January 9, 2025

8:00 am – 9:30 am

Session Type: AALS Arc of Career Programs

Room: Room 202

Floor: Level Two South

This will be a roundtable discussion about how to turn ideas for laws into state legislation. The speakers will discuss how the Uniform Law Commission (ULC) chooses projects, as well as the study and drafting process for projects. The speakers include two appointed Uniform Law Commissioners, one of whom is the current chair of the Scope and Program Committee, a reporter for a drafting committee, and the research director for a ULC standing committee who also served as an observer/adviser to the drafting committee for the 2022 Uniform Commercial Code amendments.

It is organized by Juliet Moringiello of Widener (and a ULC Commissioner).  Speakers include: Steve Willborn (Nebraska), Laura Napoli Coordes (Arizona State), Carla Reyes of SMU.  

 

Posted by Dan Rodriguez on December 11, 2024 at 02:02 PM in Daniel Rodriguez | Permalink | Comments (0)

Saturday, December 07, 2024

Tell me what a heckler's veto looks like, this is what a heckler's veto looks like

Prattville, AL removed Prattville Pride's float from the annual Christmas parade after Prattville Pride notified the city about vague threats (to throw eggs and water at the float) and asked for additional security and police presence. The mayor said the city would "not put the rights of parade participants ahead of the safety of tits (sic) citizens." Judge Huffaker of the Middle District of Alabama was having none of it, enjoining the city from keeping Prattville Pride out of the parade and ordering the city to provide police protection for the float and to enforce criminal laws as appropriate.

The court recognized that "the heckler’s veto is what the Court has before it today." That term has been abused of late, used (including by free-speech proponents) to cover loud-and-obtrusive counter-speech that makes life difficult for one set of speaker-and-willing-listener. The "preferred first speaker problem" (in which the first speaker is deemed a speaker and opposing speakers a form of censorship) reflects this over-expansion of the concept. This is what the concept means--one group threatens unlawful activity because it dislikes a speaker and the government's solution to potential crime is to silence the speaker.

Also, kudos to Judge Huffaker for FN 3: "During the hearing, the Court provided counsel for the City with a hypothetical where it asked whether the City would react the same way and remove a float of Alabama fans who wanted to celebrate their Iron Bowl victory in response to similar threats from Auburn fans. Counsel stated that the City would do so. The Court seriously doubts that."

Posted by Howard Wasserman on December 7, 2024 at 12:35 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday Music Post - Got My Mojo Working

"Got My Mojo Working" is closely identified with Muddy Waters, but it was actually written for Ann Cole by Preston "Red" Foster in 1956. Cole was a moderately successful R&B artist who recorded for Sol Rabinowitz's Baton label. She opened for Muddy on a national tour in 1957 and made the mistake of including "Mo-Jo" (as she called it) in her set. Muddy heard it, loved it, and decided to record it for Chess Records when he got back to Chicago. Cole's recording and Waters's ended up being released in the same week, and of course his was by far more famous. He also claimed the copyright, though his changes were minimal; litigation followed, with royalties eventually being paid to Foster and his family.

Muddy Waters's mainstream breakthrough was a Newport in 1960. The harp player was James Cotton, with Otis Spann on piano, both of whom also led their own important bands. You can see them in the first clip at The Faculty Lounge. Ann Cole's recording is the second clip. If you keep scrolling through them, there is some historical commentary.

Posted by Steve Lubet on December 7, 2024 at 06:32 AM | Permalink | Comments (0)

Friday, December 06, 2024

ADL new experimental study on discrimination against Jewish job candidates

The Antidefamation league released this week a new study that uses the longstanding design of identical resumes varying only names and signals of identity - such as participation in ethnic sports leagues or associations. The experiment includes a good number of observations, 3K emails: across many the United States the results, statistically significant and quite robust, were that Jewish sounding names got fewer callbacks than Western European names, and Israeli sounding names received even fewer.

A few observations: this was specifically for administrative jobs – would be interesting to replicate in other sectors and types of jobs  and specifically in lower skilled versus higher skilled jobs like high tech / programming / engineering / medicine / law. Second, all the (fictional) applicants were female – one could hypothesize that discrimination may be even more pronounced for Israeli male applicants given the past year and how protests have become violent in certain places, like in Los Angeles where the study seems to show some of the bigger gaps between applications. It is interesting that in only two cities – NY and Philly – there was no such finding of discrimination – which may be consistent with a high percentage demographically of Jewish employers.

Finally, I will underscore that indeed it is difficult to detect discrimination at the hiring stage [as opposed to firing/promotion when the employee has more info) so these studies are valuable; both federal and state laws protect against discrimination on basis of race, religion and ethnicity but discrimination in employment remains pervasive. I actually wrote about this longstanding method of resume studies in my book The Equality Machine - here is a snippet of that section:

Would an Algorithm Hire Lakisha Washington?

We worry that algorithms are black boxes—in other words, opaque and difficult to understand (which they often are). But what about the black box of the human mind? Human decision-making in the hiring realm involves dozens of recruiters, interviewers, co-workers, clients, and supervisors, each a small black box of their own. By contrast, using technology, we can check our intuition and innate human bias by employing machines to help us quantify and analyze information. We need to strive to integrate the best of both worlds—human and machine decision-making.

Two decades ago, a group of psychologists began running résumé experiments. They sent more than 5,000 identical fictitious résumés differing only in the applicants’ names to 1,300 employers in response to job ads posted in Boston and Chicago newspapers. The pretend applicants were named Greg Baker, Jamal Jones, Emily Walsh, and Lakisha Washington. The results were telling: “white-sounding” names received 50 percent more callbacks for interviews. That study was so illuminating that researchers all over the world began replicating it, manipulating other protected identities in the fictitious résumés. These studies have consistently found gender, race, age, and sexual orientation discrimination in hiring using résumé manipulation.

Twenty years of these résumé studies have been frustratingly consistent: despite social efforts and legal rules, human bias thrives. In all sectors—not least of all in the tech industry itself—despite decades of anti-discrimination laws on the books and diversity and inclusion training in place, workplaces still demonstrate bias in recruiting and hiring. To be sure, using technology to supplement or replace human decision-making carries risk and is not a panacea, but it has the potential to mitigate our innate human bias. University of Chicago professor Sendhil Mullainathan, who co-authored the original résumé study twenty years ago, argues that algorithmic bias is more readily discovered and more easily fixed than human bias. Studying what algorithms do, Mullainathan says, is “technical and rote, requiring neither stealth nor resourcefulness,” which makes discovering algorithmic discrimination more straightforward. Humans on the other hand, Mullainathan warns, are inscrutable in a way that algorithms are not. Even when the algorithms’ workings are opaque – or a blackbox – we can more systematically check the outcomes they produce to monitor for bias. When Mullainathan and his collaborators first conducted their résumé experiment—before the internet became the primary vehicle for job searching—it was a complex covert operation. They created banks of fictitious résumés, collected job opening data, faxed fake applications to prospective employers, and waited to receive job interviews or offers in order to identify the human bias that the study revealed. Nowadays, we can detect bias and imbalance in searches and screening in a much easier and more immediate way.

Technology also changes the way we can prove discrimination when disparity is detected. In my work as an expert witness in discrimination cases, I see how difficult it is to convince a judge and a jury that what happened to an employee was the result of bias. These cases have become even more difficult to prove as discrimination has become more subtle and furtive. Before Congress enacted Title VII of the Civil Rights Act in 1964, ads explicitly stating that women and minorities “need not apply” were commonplace in the job market. Now, the smoking gun of discrimination—such as the Idaho law specifying that “males must be preferred to females” in appointments for certain positions, a law that led to the landmark U.S. Supreme Court decision in Reed v. Reed—is mostly a thing of the past. Discrimination today is more subtle and more disguised. In hiring decisions, employers usually do not have formal, discernible rules on what weighs heavier among the many factors considered—experience, skill, education, personability, references, the likelihood that an applicant will accept an offer, and so on. Often, companies will just say that they are looking for the employee who is “the best fit.” Employment discrimination litigation is therefore notoriously difficult, especially when an applicant has not previously worked for an employer. And even when an employee has worked at the organization for a while, most evidence is circumstantial. Employers shift their explanations and proffer decision-making rationales that can be impenetrable to outside scrutiny.

Even more importantly, when we find that people are biased, what can we do about it? Litigation is a long, arduous, and after-the-fact process. It can financially compensate the employee who was discriminated against, but to what extent does it change hearts and minds—and most importantly, institutions? We can bring in sensitivity training and develop departments dedicated to diversity and inclusion, but it’s very hard to debias humans. Systemic, lasting change has been elusive.

Enter algorithmic decision-making. Done right, it can overcome the flaws of human decision-making. As Mullainathan says, “software on computers can be updated; the ‘wetware’ in our brains has so far proven much less pliable.” With these new pliant machines, we can expand how job opportunities are communicated; expand the applicant pool by identifying more inclusive formats and language; and employ screening measures that reject past, demonstrated human biases. We can then monitor and detect exclusions and continue to improve screening measures. As we explore each of these stages of the employment process in the following pages, we will see how, while a data point that an algorithm provides may be tainted by human bias and unequal realities, AI can continuously improve; algorithmic processes can be audited and corrected swiftly in a way that a human mind simply cannot. This malleability and adaptability vastly outclasses our current hiring practices, which rely on biases that continue to shape recruiting, mentoring, hiring, evaluation, and promotion processes.

 

 

Posted by Orly Lobel on December 6, 2024 at 12:38 PM | Permalink | Comments (2)

Trans rights and social movements

I had interesting email exchanges with readers regarding my posts on trans issues. I wanted to lay out a few of the additional issues (unresolved) about social movements:

• MLK, Thurgood Marshall, and others went all-in during the '50s/'60s/'70s, which proved the right move. But would it have been wise, or successful, in the '30s/'40s. Where is the trans-rights movement now? I would have thought it was closer to the '50s after Obergefell; now it feels like March 1877.

• The Black Civil Rights Movement was the first modern mass civil-rights movement; it operated on a blank federal constitutional and statutory slate and challenged an existing legal scheme (Jim Crow laws in place for about 50 years). Other groups--women, disabled individuals, LGB--followed on that model, challenging long-standing laws that either were part of the historical firmament (women's inequality) or had never been considered (the way the world works against people with disabilities) And there was some degree of "if this historically disadvantaged groups enjoys protection, so should we."

    The trans-rights movement misaligns because it operates in mature constitutional system--it is copying prior movements rather than inventing them. Trans people seek to fit themselves into an existing statutory landscape and to be treated as their identified (rather than assigned-at-birth) gender; states have enacted new laws targeting the group after it pushed for recognition or room to operate within the existing regime. For example, hormone therapy exists, but states now prohibit one group from obtaining that therapy for one purpose.

• There is an interesting order-of-operations problem--does government enact restrictions when groups begin advocating or do groups advocate against existing laws. The former seems more targeted and more cruel. It seems the former is at work for trans people--new laws enacted explicitly and expressly to prevent them from doing what they sought to do or hoped to achieve under existing laws and systems. By contrast, MLK moved against existing Jim Crow laws; Southern states doubled down on defending those laws but did not enact new laws. And no one attempted to enact new express prohibitions on disabled people. On the other hand, states enacted Jim Crow in response to Reconstruction. It probably depends on the moment in history in which one looks.

• Movement strategy is historically determined. It is harder to tell Group M to bide its time (especially within our modern understanding of the harms its members suffer) when Groups A through L have already established their rights. So MLK had to bide his time in the 1940s because he had nothing to build on; trans activists have 80 years.

• Size matters. Trans people represent less than 1 % of the population, compared with women representing 1/2 the population and Black people 10-15 %. It is easier for the state to target such a small group (obviously), more difficult to create a critical mass to support it, and easier for voters and others to say "why do you care so much" about issues that do not affect them. It thus is rhetorically and politically important to turn the numbers issue, to place the shame on those who would bully such a tiny group.

Posted by Howard Wasserman on December 6, 2024 at 11:42 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, December 05, 2024

Happy Repeal Day!

On this day, in 1933, the 21st Amendment was ratified, repealing the 18th, which had provided for the prohibition of the "manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes[.]" For an excellent book about the Prohibition experiment, its history and context, and its (very interesting) legal and constitutional implications and legacy, check out Daniel Okrent's Last Call.

One of the (many) not-done things on my list of "things I'd like to do as a law professor" is a seminar-course, based on Okrent's book, about Prohibition (broadly understood), including its connection to immigration, anti-Catholicism, the rise of federal criminal law, census and districting shenanigans, legal moralism, etc.  Someday . . . 

 

Posted by Rick Garnett on December 5, 2024 at 08:42 AM in Rick Garnett | Permalink | Comments (4)

On the Biden Pardon (with Jed Shugerman)

Jed and I wrote up our views about why the Biden pardon is unconstitutional at the Boston Globe.  It is obviously is a companion piece to our WaPo column on Trump's threatened self-pardon.  If you are having trouble with the Globe paywall, here is a PDF.

Posted by Ethan Leib on December 5, 2024 at 08:27 AM | Permalink | Comments (0)

Tuesday, December 03, 2024

Major trans rights, minor trans rights, and political expediency

Jonathan Chait argues that Democrats must distinguish "major" from "minor" trans-rights questions and take a stand on the major questions while leaving minor (and, coincidentally, unpopular) issues alone. According to Chait (for whom this is bound up with sensitivity to accusations of being anti-trans):

The major questions about trans rights are: Do some people have the chance to live a happier and more fulfilling life in a different gender identity than the one to which they were born? Do some of these people need access to medical services to facilitate their transition? Do they deserve to be treated with respect and addressed by their chosen names and pronouns? Do they deserve equal protections from discrimination in employment, housing, and military service? Must society afford them access to public accommodations so as not to assault their dignity?

* * *

Democrats mainly ran into trouble because they either supported or refused to condemn a few highly unpopular positions: allowing athletes who transitioned from male to female to participate in high-level female sports, where they often enjoy clear physical advantages; allowing adolescent and preadolescent children to medically transition without adequate diagnosis; and providing state-funded sex-change surgery for prisoners and detainees.

Some thoughts about why it is not as simple as he makes it sound:

Continue reading "Major trans rights, minor trans rights, and political expediency"

Posted by Howard Wasserman on December 3, 2024 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, December 02, 2024

Why California Should Not Be Admitting Teenagers to Law Practice

California has lately been admitting teenagers to the practice of law, including two siblings who each passed the bar at age 17 after graduating from an on-line law school. This is a very bad idea for everyone involved, as I explain in my new column for The Hill.

Here is the gist:

Just because teenagers can become lawyers doesn’t mean they should

Twice in the past two years, the bar examiners announced that 17-year-old applicants had passed the bar examination, to be sworn in as lawyers upon reaching 18.

I don’t doubt the brainpower and studiousness of the teenagers, a brother and sister, born a year apart, who began their law studies while still in middle school. Nonetheless, it is simply impossible for even the most book-smart 18-year-old to have acquired the life experience necessary for the competent practice of law.

At 18, they still cannot buy alcohol or tobacco, obtain an interstate commercial driving license, become an airline transport pilot, qualify as a professional fiduciary, deal blackjack in a casino or purchase handgun ammunition. 

There are true prodigies whose unique talents benefit from intense development from an early age. But law practice is not music or gymnastics. It is basically a job. It can be rewarding, fulfilling and socially productive, but apart from transient novelty, there is no advantage to starting young. 

You can read the full column at The Hill.

Posted by Steve Lubet on December 2, 2024 at 11:02 AM | Permalink | Comments (0)