For the second time ever, I was called for jury duty. But this was the first time I actually was empaneled and had to sit through voir dire (I took French in high school so this looks like “vwah deer” to me, though the judges & attys pronounce it “vore dyre”.)
The conventional wisdom is that lawyers & law students don’t sit on many juries and that was true today. The first peremptory challenge excused a lawyer from Kirkland & Ellis. The 2nd challenge excused me.
Why is this? Trial lawyers want the jury to buy into their version of events. That requires that the jurors have legally pliable minds. The lawyers probably suppose that a lawyer or law student is going to review the arguments more critically. Thus they are less desirable jurors. They might also be disproportionately influential in the deliberation room: either by seizing control, or from other jurors passively deferring to them.
Part of me would’ve enjoyed sitting on a jury, and witnessing a whole trial. Part of me was bored to tears at the subject matter–a contract dispute among partners in an LLC about who holds title to certain real property. The judge estimated it would take 10 days to present the evidence. I mean, if it was an injury case with drama and recriminations, that might’ve been worth staying for. But this is the kind of thing people ought to settle out of court.
Of course, to paraphrase Sartre, hell is other jurors. The highlights included:
• The gentleman above, who napped at every available opportunity outside the courtroom, snoring loudly.
• The TV crewman who said that due to his prior experience on “America’s Most Wanted”, could not be objective in a civil case, which he said he presumed was about “greed and ignorance”.
• The graphic artist who claimed she couldn’t be effective because as an artist, she drew conclusions based on visual communication, and oral testimony & written exhibits just wouldn’t hold her interest.
• The tatooed psycho with a fauxhawk / mullet and baseball cap who, after approaching the judge at sidebar and being denied an early exit, hissed “FUCKIN’ RIDICULOUS” into the courtroom.
I guess the joke’s on me, because the last 3 of these folks were excused for cause. If you’re looking for an easy out, try one of those techniques, it’s less costly and time-consuming than 2 yrs of law school.
The whole of my voir dire interview:
Q: So you’ve finished two years of law school?
Q: Are you familiar with summer clerkships?
Q: Is there a reason you’re not doing a clerkship?
A: [pause] Because I didn’t want one.
All the attorneys in the room got a good chuckle out of that, for reasons that are unclear.
05 Jun 06
In honor of the summer blogging season, we’re going to take a break from the usual parade of tepidly amusing anecdotes and run some tepid legal thinking from a paper I wrote this semester. My professor suggested I submit it for publication. The way I see it, if all 6 of my readers make it through this series (and that’s a big IF) that’ll be approximately triple the readership I’d get in a law review.
Preamble: I think affirmative action is an entirely worthwhile policy for academic admissions. I don’t believe there are absolute scales of so-called ‘merit’ that schools are morally bound to reward with admissions letters. No one ‘deserves’ to get into school X. Schools should be able to admit whomever they want, for whatever reason, in the interests of delivering whatever kind of academic / learning culture they aim to create. I do not support Calif’s Prop 209 as it applies to the Univ of California system (I have no opinion on it outside that context–is that lawyerly precision or what?)
Not only that, I am a beneficiary of affirmative action. Older (30+) students often receive an admissions preference, in support of non-racial diversity. I got into UCLA law school with an undergrad GPA and LSAT that were at or below the median. (And, for god’s sake, an art degree–WTF!?) This is conjecture, but I imagine if I didn’t have the age / work experience thing going for me, there were many higher-scoring white males who would’ve had my seat.
Here’s the problem. And let me describe it in a race-neutral manner, because it is. Law schools depend largely on a composite of undergrad GPA & LSAT to assess applicants, called an ‘academic index’. Preferences work by giving a particular applicant, let’s call her Ashley, a numerical boost to her index. For whatever reason, some elite law school wants to enroll more people whose name is Ashley, and without the index boost, this Ashley wouldn’t make the cut.
So Ashley gets an index boost, which lifts her into the target index zone, and she gets in. But in real terms, she’s near the bottom of her incoming class. This is logical, right? If Ashley needed a boost to clear the lower threshold of the target zone, that means she started below it.
No one would be surprised to hear that success on the bar exam is highly correlated to one’s law school GPA, which in turn is correlated to undergrad GPA and LSAT. So what will happen to Ashley? Statistically speaking, since she’s starting out at the bottom of the class, she’s more likely to end up there, and more likely to have trouble on the bar as a result.
Two thoughts will spring to your mind. 1) Am I saying preferences make people fail the bar exam? Not really. I’m saying that preferences may be effective at getting Ashley in the door, but they don’t address the bigger issue–if Ashley’s starting out near the bottom of the class, there’s a risk it will negatively impact her legal education. It should be clear that this isn’t a reflection on Ashley’s qualifications in absolute terms. It’s a natural side effect of relying on numerical measures so heavily during admissions, and manipulating these numbers to achieve certain effects.
Thought 2): why is it obvious that Ashley won’t do well on the bar? Isn’t being at the bottom of this elite law school better than being in the middle of a 2nd or 3rd tier school? That’s a logical intuition, but the short answer is: no, it’s not.
The bottom 10% of students in any school, regardless of eliteness, fare poorly on the bar. The reason why this is true is much debated. But students who end up at the bottom of their 1L class perform worse on the bar than just their admissions numbers would predict. This effect has been verified by the LSAC-BPS, a study of 27,000 law students completed in the mid-90s.
To bring this all together, any beneficiary of an admissions preference–white, non-white, old, young, Ashley–is conceivably susceptible to this problem. It just happens that preferences tend to be deployed in service of admitting underrepresented racial minorities (African-Americans, Latinos, Native Americans). And what we see is, indeed, these groups perform worse on the bar exam than whites and Asians. Not because they’re intrinsically less skilled, but because the boost from the admissions preference is, like Cinderella’s carriage, cosmetic & short-lived. In other words, bar underperformance correlates to race, because of who typically receives preferences, but it’s not caused by race.
To be fair, there are reasonable people who would disagree with that last paragraph. Race-based theories of bar performance are out there, like stereotype threat (the idea that racial minorities tend to perform worse purely because they are expected to) or racial bias in the bar exam itself. But regardless of the reason, the underperformance is real–no one debates this. And regardless of the reason, schools need to think about the legal & ethical propriety of not disclosing these risks to students receiving preferences.
07 Jun 06
Those of you familiar with affirmative action litigation (Bakke, Grutter, Gratz, Hopwood) may know that all these cases dealt with claims by white students who felt they were unjustly denied admission because of preference programs. These cases all asked: how should the use of preferences be balanced against the rights of those not receiving preferences?
But no case has ever asked: how should the use of preferences be balanced against the rights of those actually receiving the preferences? That’s the issue at the heart of the risk disclosure question.
If students receiving preferences will be subjected to greater risk of dropping out or failing the bar, don’t they deserve to know this in advance? Or should law schools–who know in detail about the gap in performance–be allowed to remain silent?
When I discuss this idea with people, this is usually the point at which they say “MB, give me a break. Why should law schools disclose risk? That’s a silly idea.” So if that’s you, don’t worry. I hear ya.
Think about the public policy behind other risk disclosures. There are products out in the world (e.g. Vicodin) that have a lot of positive benefits. We want access to these benefits, especially if we’ve had painful dental work. But these products also come with risks (e.g. they might make you loopy & depressed & crash your car).
The law says those risks have to be printed on every bottle of Vicodin. Does that mean if you take Vicodin, you will crash your car? No. But once you’re notified of the risks, you accept your Vicodin prescription subject to those risks. You have the information you need to make an informed choice about whether the benefits are worth it. And you waive your right to complain later if you’re injured.
Admissions preferences, I would argue, are no different. People who take Vicodin are more likely to crash their car. People who receive preferences are more likely to drop out or fail the bar. Why should one carry a warning label, and not the other?
One criticism of risk disclosure is that it potentially “stigmatizes” students. If we tell Ashley she’s at higher risk of failing the bar, the argument goes, we’ll be sending her a message of low expectations.
That strikes me as the kind of reasoning that’s been used over and over to justify institutional paternalism. It suggests that it’s more respectful to the student’s intellect to deny her the opportunity to see historical information about performance outcomes. Who’s in a better position to decide what’s best for Ashley: Ashley, or the school admitting her?
The duty to disclose is proportional to the risk being assumed. Students attending law school are making one of the biggest investments of time and money in their lives. If there’s a risk out there that could cause them to lose their investment, that’s something they probably would want to know.
They may choose to accept admission in spite of the risks. Or not. But either way, they’d be making a choice as an informed consumer. Currently, they don’t have that choice.
But MB, you say, car crashes are really really bad. That’s why we warn Vicodin users about them. Can the bar results for students receiving preferences really be that bad?
Tune in next time.
09 Jun 06
Between 1991-97 the LSAC (people who run the LSAT) did a study called the LSAC-BPS. They tracked 27,000 law students before, during and after law school to see what factors influence graduation rates and bar passage.
The following charts are based on my own computations using the LSAC-BPS data. Keep in mind that in law school admissions, Asians are not considered under-represented racial minorities, and typically don’t receive preferences. Nor, obviously, do whites. Similarly, African-Americans and Latinos almost always receive preferences.
Thnk about what these figures say about the status of racial equality in legal eduation.
Attrition rates prior to graduation
This is the proportion of students of each race who started law school but hadn’t graduated by the end of the study. African-American and Latino students are considerably more likely to drop out than Asians or whites.
Failure rates on first bar exam
The disparity in graduation rates becomes even more pronounced at after the first bar exam. This makes sense, since students who scraped by in law school are less likely to be performing at an adequate threshold for the bar. And who are these students near the bottom of the class? Many of them were admitted under preferences.
African-Americans fail their first bar exam at over 4 times the rate for white students. For Latinos, it’s over 3 times that rate.
Net bar exam failure rates
The LSAC-BPS didn’t track the results for every bar exam taken during the study, just the first and the last. Roughly speaking, that lets us figure out what proportion of the study members ended up with a valid bar membership, i.e. could actually practice law.
In other words, during the time of the study, Latino law students were about 4 times less likely than white students to end up as lawyers. African-Americans were 7 times less likely.
(Actually, the real numbers are even higher, because I’m not factoring in students who dropped out of school, or who graduated and never took the bar. They didn’t become lawyers either.)
As for equality in legal education, I think the numbers speak for themselves. I will only add two points:
1) The loss of so many minority students on the way through law school & the bar means admissions preferences are effective for creating racially diverse law students but not nearly as effective for creating racially diverse lawyers.
Worse, the attrition means there’s plenty of URM students out there who paid for multiple years of legal education and have the debt to prove it, but not the bar membership. Is it good enough for law schools to admit a diverse student body, or do schools need to make sure these students are actually becoming lawyers?
2) Schools have been on notice for a while now about the disparity in graduation and bar passage rates. Every school knows which students graduate; every school knows which students pass the bar. Is it good enough for law schools to have this information and not share it or act on it?
12 Jun 06
You could make three salient objections to the reasoning so far. “(1) MB, students know whether they’re coming in with low numbers relative to other students. (2) Once they show up, they’ve assumed the risk of lower bar performance. And anyways, (3) why should law schools be held accountable? The bar exam is the student’s problem.”
(1) An observant student may notice that they fall below the 25th percentile GPA/LSAT numbers that are reported to the US News rankings. But how would they possibly be able to infer their statistically predicted bar performance from this information?
This is the ‘have it both ways’ argument: students apparently know so much already that there’s no need for schools to disclose anything further. Do we really think students know that much to begin with? (I don’t.) Or, if we accept that proposition as true, what possible harm would result from disclosing information that apparently students are already well familiar with?
(2) The doctrine of assumption of the risk typically extends only to risks that are reasonably apparent to the party in the transaction. If you go to karate school, you assume the risk of getting kicked in the head. However, you don’t assume the risk of contracting tuberculosis from the instructor. One risk is apparent; the other is not.
The bottom 10% of law school classes end up struggling in ways that are not predictable purely from their numbers. Students with the same numbers, who go to lower ranked schools, often perform better on the bar. One theory, which I buy into, is that the entering credentials disadvantage widens into something larger as students learn less effectively in classes that are pitched above their skill level.
But regardless of the reason, these mysterious factors seem to materially impact bar performance in the long term. Even if the students assume the risk of coming in with low numbers, they aren’t assuming the risk of these mystery factors.
(3) I call bullshit on that one. From the ABA’s own accreditation requirements:
Chapter 3. Program of Legal Education
Standard 301. OBJECTIVES
(a) A law school shall maintain an educational program that prepares its students for admission to the bar and effective and responsible participation in the legal profession.
Yep, it’s right there at the top of the list. You laugh, but there are law school deans who are sanguine about URM underperformance on the bar. Apparently their view is that even without a bar passage credential, the J.D. has career value.
Um, sure, unless you want to be a lawyer. Also, that opinion is directly contrary to the ABA requirements. I would hate to be a dean who had to testify under oath during a deposition in a lawsuit challenging these practices.
Let me finish with a couple other interesting bits from the ABA accreditation requirements regarding admissions:
Chapter 5: Admissions
Standard 501. ADMISSIONS.
(a) A law school’s admission policies shall be consistent with the objectives of its educational program and the resources available for implementing those objectives.
(b) A law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar...
Standard 509. BASIC CONSUMER INFORMATION.
A law school shall publish basic consumer information. The information shall be published in a fair and accurate manner reflective of actual practice.
The following categories of consumer information are considered basic:
(1) admission data; ...
(3) enrollment data and graduation rates; ...
(8) placement rates and bar passage data.
16 Jun 06
As I mentioned before, the data suggests when you look at that bottom 10% of a given law school class, and compare them to students at lower-tier schools who had the same incoming credentials, the students at the lower-tier school perform better on the bar.
This suggests one way of addressing the problem of affirmative action: get rid of it. Let URM students compete purely on their numbers. They’ll still get into law school, just not the same ones. But theoretically, they’ll be more likely to become lawyers. This is a proposal advanced by Prof Richard Sander, who has done much recent research in the area (and whom I’ve studied with this past year)
I buy into a lot of Sander’s findings, but I disagree with him on this point. One major problem with suspending all racial preferences would be that URMs would largely disappear from top-tier law schools. This is exactly what happened to Boalt and UCLA law in the year after Prop 209 (which banned racial prefs in Calif) was passed. I think it’s important, both for the sake of the student body & the profession, that elite schools continue to have the tools to admit URMs.
The other problem is the law of unintended consequences. The statistical prediction is just that–a prediction. Removing racial preferences would shift most URM students down to the next lower tier of school. Without knowing which individual schools offer the best success rates for URM students, we can’t say with any certainty that this would improve the overall output of URM lawyers. It might decrease it.
I don’t think eliminating preferences is the answer. Rather, I think better preferences (ie. those with risks disclosed) and better follow-up (e.g. academic support programs for the bottom 10%) is the way to go. Don’t send those students down to a lower-tier school. Work on bringing them up to the standards of the school they’re at, so they can enjoy the same graduation and bar passage rates of any other student. As Bill Clinton said of affirmative action 10 years ago–mend it, don’t end it.
Risk disclosure is ultimately about accountability. Risk disclosure, if it were required by all law schools, would become a form of benefit disclosure to applicants. If you were a student entering in that bottom 10%, you would have the information you need to compare schools. Students would gravitate towards schools posting the best results, and more of them would eventually become lawyers.
What about the other schools, with worse results? They’ll have the competitive pressure of the free market as an incentive to improve. In the short term, they’ll probably have to provide tuition subsidies & scholarships to get URMs to attend. In the long term, they’ll want to capitalize academic support & other programs that bring URM performance into parity.
Will there be students who, confronted with the risks, change their mind about going to law school? Sure, but I can’t say I see that as a bad thing. Right now, there are plenty of low-credential students who are induced to go to law school in spite of the risks. They spend 3 yrs and $100K, but they can’t pass the bar. If we deter these students from going to law school, we haven’t changed the outcome–either way, the student has no career as a lawyer. At least their time & money haven’t been wasted in a fruitless pursuit.
Richard Sander, A Systemic Analysis of Affirmative Action. Sander’s 2004 article kicked off the current reheating of the AA debate. This link includes the original article, a set of critical responses by other law professors, and Sander’s Reply to Critics, where he adds some important extra analysis to the original data.
Among other findings, Sander introduces his theory of the ‘mismatch effect’. The idea is that students with poor entering credentials start at the bottom, but fall farther and farther behind as they struggle in classes that are aimed above their skill level. It’s not a racial theory, nor is it specific to law school. Sander’s point is that admissions preferences induce the mismatch effect for many students receiving those preferences.
MB, Addressing Risk Disclosure in Affirmative Action Through Litigation. Could AA recipients make a legal claim against law schools for failure to disclose risks? I expand on the points here. I also explore theories of legal liability in detail. The short answer is, common law fraud and tort claims probably wouldn’t work. But consumer protection claims probably would. I think law schools are wide open right now to this kind of suit.
David Bernstein posts on Volokh.com about last week’s civil rights commission hearings in Washington DC about affirmative action in law schools. Bernstein testified, as well as Sander. This issue has not escaped notice of the commission:
Several [civil rights] commissioners expressed grave concern about the extraordinarily high rate at which African American law students at non-elite law schools either fail out of law school or fail to pass the bar exam ... while the new [ABA accreditation] standard requires law schools to pursue diversity in admissions, it says nothing about the need to ensure that admittees actually succeed in becoming attorneys. [The ABA representative] acknowledged that the ABA committee that drafted the Standard has no data regarding the failure rate of African American matriculants at particular law schools, nor about how the new standard may worsen this rate.
The ABA can’t get its hands on data about URM bar passage rates? Is there anyone who actually believes that? Anyone? Apparently, the Dept of Education is considering suspending the ABA’s accreditation authority until some of these issues are worked out–that is a major administrative sanction right there.
Jerry Kang, Fair Measures: A Behavioral Realist Revision of Affirmative Action. This is a new article by Kang, who’s a Critical Race Theory prof at UCLA law. Kang relies on ‘stereotype threat’ to explain differences in racial performance. I don’t personally buy this explanation–among other issues, Kang & his psychologist co-author rely on psychological studies, and almost no academic performance data. But it’s another view.
20 Jun 06
This summer, I am making a weekly visit to local courthouses to observe trials and hearings. I recommend it to all law students. Sitting in court, it strikes me as more than a little ludicrous that I’ve completed 2 yrs of law school and no one’s taken me to see what’s going on here. Shouldn’t this be, like, a mandatory field trip during the first month of lawyering skills?
• It’s ok to go in & out of courtrooms while court is in session. Do it quietly. And if the judge says “all rise”, you stand up too.
• If you go to federal court, leave your cell phone in the car–they won’t let in any device with a camera or recording capability.
• Judges do post their calendars online. But these are pretty useless, since lawyers are calling up all the time and removing their hearings (because they settled the case, or resolved the issue themselves). The best thing to do is just show up and cruise around, looking for a court in session.
• You’ll notice when you do this that most courtrooms on any given day are dark. That surprised me a little. Where is this massive judicial backlog I keep hearing about? But, that doesn’t mean judges & their clerks aren’t busy in chambers, reading turgid motions to compel discovery, etc. The upshot is, if you have a favorite judge, don’t count on being able to watch them in action.
• You will notice that many lawyers just aren’t that good. Many juries look very bored. And you will get to see judges opening up the whup-ass on misbehaving attorneys. That’s a gas.
• You will also notice that a judge’s main job is not really to judge, per se. It’s to conserve judicial resources by pushing work back onto the attorneys–in a way, to avoid judging. Each judge has hundreds of cases on their docket. It’s just not efficient to treat each one like a special unique flower. Trial, you come to appreciate, is a massive time-waster because it makes the judge unavailable to do anything else. You will see judges berate attorneys for bringing in issues that should’ve been solved outside of court.
• The Spring St federal building is like a courthouse from the movies. Though the statue of a hunky, topless young Abe Lincoln in the lobby is just a tad more creepy homoeroticism than I was looking for on my way in. By contrast, the Commonwealth Ave state court building is pure Nixon / Soviet era architectural depression.
• I’ve walked into no fewer than 4 police misconduct trials against the LAPD. Nice to know some things don’t change.
21 Jun 06
Epilogue 8: Buy my book
Epilogue 7: Recessionaires cont'd
Epilogue 6: Schill quits UCLA
Epilogue 5: recessionaires
Okay, I lied. Epilogue 4
Epilogue 3: The End (really)
Epilogue 2: Nov 2007
The eagle has landed
Seduced by the dark side
You've been in law school too long when...
I have only five more class days
The lone gunman
The last spring break is over
Someone saved your life tonight
Dean Schill & the Pussymobile
Help me yet again