Balkinization  

Tuesday, July 30, 2013

Leiter's Contradictory Conclusion

Brian Tamanaha

Typical Brian Leiter. He cannot just say why he thinks you are wrong: he sets out to destroy you, ruin your credibility and reputation, and grind your face in the dirt. Leiter says I owe the world an apology—that I must abase myself and do public penance for writing Failing Law Schools—because Simkovic and McIntyre’s (S&M) study has definitively proven me wrong. Remarkably, for all his bluster, when Leiter lays out “what I think we know and don't know,” he repeats one of my main objections to their study.

Before getting to that, I feel compelled to say that I have long been anticipating his “destroy Tamanaha” assault for reasons entirely apart from the current debate over legal education. We have skirmished on various subjects over the past fifteen or so years, but my greatest offense is having the temerity to challenge his interpretation of the formalists and the realists—in particular my argument in Beyond the Formalist-Realist Divide that the conventional story about the formalist age is a myth. Leiter alludes to this dispute in his post: “in the areas where I have expert knowledge, [Tamanaha’s work] has always been a bit notorious for its confusions and theoretical overreaching, especially in its desire to make startling claims, the evidence and the arguments be damned.”

Leiter considers himself the world’s foremost authority on formalism and realism, so anyone who disagrees with him is obviously wrong. Thus it must come as some discomfort to Leiter that a major new historical study, David Rabban’s Law’s History, is consistent with my core argument that our conventional image of the so-called formalist age is false. Robert Gordon blurbs the book, “This is a pioneering study of American historical jurisprudence in the late nineteenth century. It is comprehensive, meticulous, and deeply learned….And it is eye-opening: the standard picture of this era's legal scholars as political reactionaries and abstract deductive 'formalists' cannot possibly survive this splendid and important book.”

As for legal education, based upon a single study Leiter again leaps to judgment and condemns me in a vicious fashion. This debate assuredly has become tiresome for readers, so I will not rehash the details, but instead will briefly comment on his three basic statements about what we know from their study.
1. The vast majority of those who got a JD over the last two decades are better off, financially, than similar individuals who stopped with the BA.
S&M have issued a torrent of words in response to my various criticisms, but what they have not justified is their earnings comparison between the bottom 25th percentile law grads and the bottom 25th percentile bachelor’s holders. This flies in the face of their finding that law grads are above average in GPA’s and test scores, in wealth, in quality of undergraduate college, etc. If we believe that 25th percentile law grads, had they not gone to law school, would likely have been as successful as median bachelor’s holders, their conclusion fundamentally changes.
2. We don't know if other post-graduate degrees are more worthwhile, financially, than the JD; Simkovic & McIntyre did not attempt to address that systematically.
Correct.
3. We don't know if the economic pattern for JD-holders will hold for the future, though Simkovic & McIntyre adduce some evidence that it will.
Correct. This is a stunning statement to read, after the opprobrium Leiter heaps on me, since this is this precisely what I have been arguing.

When stripped to its core, S&M’s argument is that the past generation of law grads (who entered law school in the 1970s, 1980s, and 1990s) reaped an earnings premium of “hundreds of thousands of dollars” at the 25th percentile, therefore, current law students will reap the same. If we don’t know whether this pattern will hold, however, then how can they (and Leiter) express such confidence that people who chose to forgo law school today are making a terrible mistake?

Leiter weakly papers this over by saying S&M “adduce some evidence” that the pattern will continue. But we must not forget that their study omits the dismal results suffered by law grads from 2009, 2010, 2011, 2012, 2013, and counting. (That’s about 200,000 new law grads not captured in their study.) And lots of people, including managing partners of law firms, have expressed the view that the legal job market is undergoing a fundamental transition. The bottom line is that we don’t know. So how can Leiter condemn me for being wrong when the ultimate answer turns on this unresolved question?

Fighting with Leiter is a losing proposition, so I will stop with a final comment. As he often does, Leiter quotes an email from an anonymous colleague who supports his position. I get lots of supportive emails from law profs, including some that make unflattering observations about Leiter, which I will not reprint.
But I must say I laughed when I read Leiter’s unnamed professor remark that I was defending a “profitable franchise.” This enterprise has been anything but “profitable” for me. I have vowed to donate all proceeds from the book to student fellowships, and so far have given much more to this than the royalties I have received. On top of that, I have offended many colleagues across legal academia. This book has been a professional disaster for me, as I anticipated it would be. And Leiter is doing his utmost to make sure of it.


Comments:

Two brief comments:

(1) David Rabban shares my view of your book on the realist-formalist divide. You are misrepresenting the content of his recent work.

(2) My doubts about your book on the realist-formalist divide were set out in detail here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646110.
 

This comment has been removed by the author.
 

Nobody in the world except academics cares about the formalist-realist or realist-formalist divide.
 

Does Leiter compare the ROI on a JD with the ROI of the same time and money invested elsewhere?
 

We saw his style a few years back on this blog in his "don't be mean to the torturer enabler" effort and he was enabled, even when he treated regular contributors crudely. But, if fighting with him is a losing proposition, you tried too hard.
 

Leiter is similar to Krugman in is his creepy, self-referential style of writing, and in his refusal to engage in good-faith debate. In the manner of about 5,000,000 Internet cranks, he thinks it's a contribution to wonder whether those with whom he disagrees are stupid or evil.
 

Doug Richmond (second comment from the top) is wrong. I am in the world, I am not and have never been an academic, and I cared enough about the (non-existence of) the formalist-realist divide not only to read Brian's book but to review it favorably for The Federal Lawyer.
 

I believe Leiter is some sort of sociopath. It isn't just the bad behavior, but his apparent inability to recognize how others see it. I sense that Leiter really has no idea that he is not respected.

Anyway, Brian Tamanaha's reputation won't be destroyed by the likes of Brian Leiter. Leiter just isn't that influential. Nobody really cares what he thinks, especially as it pertains to this issue. Although he has played the role of cheerleader for others, he has yet to contribute any meaningful work or scholarship to this debate. He's out of his league arguing with Tamanaha.
 

Let's take care in identity with so many Brians in the picture now.

Speaking of defending a "profitable franchise," is it clear that this was a reference to Brian T's book? Or is the "profitable franchise" what I described in a comment on an earlier post of Brian T as the JD/Student Loan Institutional Complex? Brian T as a member of the Complex raised serious issues. Brian L is a long time member of the Complex and perhaps he feels threatened.

And perhaps there are many members of the Complex who basically agree with Brian T but may have been hesitant about speaking up to avoid the "Leiter than air" treatment. So I say to Brian T, don't be too sure that you have offended that many of your colleagues in legal academia. There will be changes in the Complex, there will be changes in the Big Law model. You were not protecting your pocketbook with your book; rather, you had the interests of JD students with their heavy economic investments.

Now let's look at the problems of the Complex as they impact the public's need for the delivery of competent, affordable legal services to the masses.
 

I think that most law professors understand that Tamanaha is right. I used to become frustrated at the lack of attention paid this issue on the various law professor blogs out there. I now believe that their silence is because they know Tamanaha is right.

Very few law professors are seemingly willing to associate themselves with the arguments of Tamanaha or Campos (although there have been a few). But they seem equally unwilling to associate with Leiter and Diamond.

It would be a whole lot easier to join sides with the people looking to protect the status quo. The only thing you'd have to lose is your reputation, as you'd have to go on record in defense of the indefensible. Only a certain kind of person has what it takes to do that. Law professors are mostly decent human beings, so they remain quiet.
 

Even if one agrees with the conclusions of Simkovic and McIntyre, this does not mean that law schools acted appropriately in raising tuition year after year, chasing higher U.S. News rankings, or manipulating employment statistics. Brian (among others) deserves credit for forcing legal academics to confront this and other troubling behavior.

This being said, I'm not sure what is left of Brian's core argument that the economics of law school are broken. He now seems to concede that for all but S&M's bottom quarter, a law degree is likely to be a good investment. With respect to the bottom quarter, he suggests that historical data is not predictive. But he has also acknowledged that IBR reduces the downside risk.

While Brian isn't responsible for how his work is used, scores of radical reforms have been proposed based on what now appears to be the dubious assumption that a law degree's cost far outpaces its value. It would be interesting to know whether Brian still believes that legal education needs to be transformed at the majority of American law schools.
 

A couple of comments about Brian Leiter:

1) He quotes Stephen Diamond favorably.

2) He describes this study as 'the first serious scholarly intervention in the debate about an economic value of a law degree'. First, it's not the first (I don't have time to find a link but on one of the blogs debating this somebody posted links to close to a dozen studies). Second, it's not serious - it hasn't been peer-reviewed.


 

Milan,

I don't presume to speak for Brian T, but I think I can address the points you've brought up.

I think your comment about tuition whangs the nail right on the crumpet. There are essentially two questions that need to be asked. The first is for prospective students, "Is law school going to be a good investment?" The second, which is what the reformers should focus on is, "Can we do better for our students?" The defenders of the status quo seem to want to answer the first question, and so long as the answer is Yes, the mindset is "Okay, now let's milk the system until the answer is No, then back off a bit."

As for the results of the bottom quarter, I believe that's where the emphasis of the debate needs to be. That is a huge proportion of the students graduating from law school, and terrible odds when you're asking someone to shell out $150k in tuition, plus other expenses. As for IBR/PAYE reducing the risk, I don't think that should be taken too seriously. I think looking at default and poverty sets the bar too low. If your students are experiencing a life of financial hardship for the next 20 years after graduating, your school is in serious need of reform.

For the radical reforms, do you have any specific in mind? Closing 10-20 of the worst performing schools seems to be prudent, even accepting Simkovic and McIntyre's analysis.
 

The vitriol that against Brian Tamanaha is an entirely predictable result of his betrayal of his class.

One would think that Frank Pasquale would recognize this, if not Stephen Diamond and Stephen Bainbridge.

The class implications of the debate are particularly acute at lower ranked schools, whose student ranks are so often filled older students, students of color, immigrants, and first generation college graduates, while its professorial ranks are filled with Ivy League certified members of the upper class.

These professors would never dream of welcoming one of their students into their ranks, even if they are to make money it is only by toiling and hustling in the least prestigious fields of law.
 

Brian T: "But I must say I laughed when I read Leiter’s unnamed professor remark that I was defending a “profitable franchise.” This enterprise has been anything but “profitable” for me. I have vowed to donate all proceeds from the book to student fellowships, and so far have given much more to this than the royalties I have received. "

Right-wing propaganda is *always* Freudian projection. A lot of people have made very good salaries[1] with federally-subsidized loans teaching students who will have less than a 50-50 chance of breaking even on their investment. They don't like being told what they are doing.

[1] Yes, it's a very good living, salaries ranging in the middle $100K's, job security by one's early 30's, and very comfortable working conditions. And no, Joe Random Law Professor, you wouldn't have made partner - you dropped out at year 3, when the odds were still 75% against you; if you had made partner, you'd have made more money, but not per hour, and certainly not per unit of stress.
 

Fred: "It would be a whole lot easier to join sides with the people looking to protect the status quo. The only thing you'd have to lose is your reputation, as you'd have to go on record in defense of the indefensible."

I disagree; it's those who buck the consensus who 'lose their reputation'. That's because the reputation is with the people who make money off of and support the consensus.
 

BL1Y: "The defenders of the status quo seem to want to answer the first question, and so long as the answer is Yes, the mindset is "Okay, now let's milk the system until the answer is No, then back off a bit.""

They'll back off when forced, and not one second earlier. And the answer to the first question is actually 'historically, probably'.
 

The study was peer-reviewed. BT says he was asked to review it for publication, though he disagreed with its findings.
 

Milan: "This being said, I'm not sure what is left of Brian's core argument that the economics of law school are broken. He now seems to concede that for all but S&M's bottom quarter, a law degree is likely to be a good investment. With respect to the bottom quarter, he suggests that historical data is not predictive. But he has also acknowledged that IBR reduces the downside risk. "

First, the big problem for S&M's argument is precisely that it hinges on 1985-2011 (excl. new grads) holding for the next 40 years.

Now, if they present evidence that sometime in that period the ratio of new grads: jobs and the salary composition of new grads matched what we see now, then they'll have an actually good argument.

As for IBR, there are a number of problems; read Campos on them.
 

BH: "The study was peer-reviewed. BT says he was asked to review it for publication, though he disagreed with its findings."

In what journal was it published?
 

It has been posted on SSRN. It has not been published yet. BT did not say which journal asked him to review it. I read somewhere else, I do not remember where at the moment, that others reviewed it.
 

Asking someone to read over your paper is not the same as peer review. Peer review requires a panel of judges, not of your choosing, who have the ability to deny your study publication if it has serious flaws.
 

Mr. BL1Y--I know what peer review means, having done it and been subjected to it. Here is BT on July 25th:

"Given the tone of my comments, it may come as a surprise to many that a couple of months ago I was asked by a law journal to evaluate S&M’s draft for publication, and, despite my reservations, I gave it a positive recommendation because I thought it raised a useful new perspective on the issue of economic return on a law degree."

That is nothing in that statement that suggests a friend asking a friend to read something.

Also this from S. Diamond--

" 'Their research was reviewed in advance of its posting on SSRN by a large array of respected senior scholars in law, economics and business. It was also peer reviewed prior to its acceptance at the American Law and Economics Conference held at Vanderbilt earlier this year, prior to its public posting on SSRN. As a test, without telling the authors, I wrote to one of those reviewers who, in fact, is a fan of the work of Tamanaha and asked him for his view of the research. He sent me the copy of the comments he originally sent to the authors in which he concluded their paper to be “very careful and well done” although he reserved judgment on whether what is happening in the market for JDs is “all cyclical or at least partially structural.' "

I am making no judgment about the merits of the article. I have not read it yet. I was merely responding to the statement that it had not been peer reviewed. There is evidence that it was.
 

It seems like every time Tamanaha has posted on this subject, Pasquale has soon, sometimes immediately, moved that post down by posting a response. This results in a situation where all three blogs involved in this argument -- Leiter, Concurring Opinions, and this blog -- feature the arguments of Tamanaha's opponents as their most recent posts on the subject. Doesn’t seem like fair play to me, but maybe it just means Tamanaha needs his own blog.
 

P Cass makes a good point. I reviewed Simkovic's posts at Concurring Opinion yesterday and noted that there were significant comments on his first two posts. There have been about five subsequent posts by him and no comments are noted; so I tested each such post by clicking on comments but each time there was no facility for comment. Perhaps there is a surrogate strategy on behalf of S/M (or at least S) to pile on Brian T. Frank P regularly posts at Concurring Opinions, sometimes cross-posting here. Frank P's CO posts permit comments but not at this Blog. Several of Frank P's posts at this Blog critical of Brian T are not cross-posted at CO and comments are not available to such posts of Frank P. So both Simkovic at CO and Frank P here at this Blog seem to be cross-blocking Brian T by not permitting comments. Is that the strategy?
 

BH, Diamond is not a trustworthy source on anything.
 

BH,

Nothing about that process indicates that the people asked to review the article had the final decision on whether it could be published.

Peer input =/= Peer Review
 

Ticking off Leiter is not proof that Tamanaha is correct, but it's certainly a data point in his favor.
 

@BL1Y-- I think, "I was asked by a law journal to evaluate S&M’s draft for publication, and, despite my reservations, I gave it a positive recommendation" suggests that had BT and whoever else was asked to review the article given it thumbs down, the law journal who asked for this would have used his opinion in their calculations about publication. He used the term "recommendation" which is one of the choices usually given in this process, though there is no one way this is done among all publications. That is something more than just 'Hey, friend. What do you think of this?" Unless you have information otherwise-- and you could possess it and share it --there is no reason to think that the law journal was not using BT seriously as a peer whose recommendation they would take into account when evaluating whether to publish. That he was open-minded enough to give it a positive recommendation despite his disagreement speaks to his good faith in approaching it. And people asked to review articles and books for publication don't get the final say on whether the article or book is published.
 

Cass: "It seems like every time Tamanaha has posted on this subject, Pasquale has soon, sometimes immediately, moved that post down by posting a response. "

That's not as bothersome as the fact that he doesn't have the, ah - intestinal fortitude - to allow comments.

I've seen situations where not allowing comments is simply the desire not to run a sewer pipe into one's house, but in this case it seems to be lack of willingness to engage in debate - the legal equivalent of Mankiwism.


 

At Tax Prof Blog, there is an interesting post on Adam Rosenzweig's "The Economic Value of a Law Degree" and the Degraded State of Scholarly "Debate" that just may help get the debate to be more serious, pointing out that both Brian T and S/M deserve credit for their respective efforts in addressing a serious subject.
 

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