Author: Sarah Waldeck


Deferred Debt and Alumni Giving

A recent New York Times article by Ron Lieber asked whether alumni will give to colleges and universities this year, particularly if the institutions have mega-endowments. As Lieber put it:

Against the real likelihood of financial doom for so many people, it feels almost unseemly to consider a donation to a college or university. Surely there must be a food bank or job retraining program that is more deserving.

If past experience is any guide, don’t expect the food banks and job retraining programs to win out. One persistent trend in philanthropy is that groups providing social services tend to receive a smaller slice of the charitable dollar than both educational and arts organizations. Perhaps this year the needy are so salient that these patterns will shift a bit, but old giving habits die hard.

Lieber writes that for him, debt is the most persuasive reason for continuing to give to his alma mater; his education was made possible by generous scholarship support. Almost every college student has this sort of debt, because at most places not even full tuition covers the total cost of an education. Most alums are at least vaguely aware of this and, for some, it may provide an adequate reason to give.

But I wonder how long the notion of a deferred debt will continue to have practical or rhetorical force. With tuition rising at a rate that outpaces inflation and students and their families feeling increasingly strapped, tomorrow’s alums may conclude that even if tuition didn’t cover the cost of their education, it should have. The gap between what higher education costs and what students actually pay may soon be seen as more symbolic of the runaway costs of higher education than of an institution’s generosity towards its students.


Thanksgiving Entertainment

Regular Co-Op readers may have realized that I am a big fan of the radio program This American Life. Here’s the link to one of my all-time favorite stories: Opening Night. There’s not a legal connection; there’s not even a Thanksgiving connection. It’s just flat-out hilarious.

Best Thanksgiving wishes to everyone, with a special thought for those who may feel less fortunate than they did last year.


Simulated Disorder in the Netherlands

While the broken windows theory of crime control has much intuitive appeal, empirical support has always been a bit thin. Now researchers in the Netherlands have conducted a series of experiments which seem to confirm the core hypothesis that visible signs of low-level disorder increase the likelihood that people will violate behavioral norms. The experiments showed that disorder not only increased the possibility that individuals would engage in mildly anti-social behavior (like littering), but also more serious criminal behavior. As described by the Economist:

The most dramatic result . . . was the one that showed a doubling in the number of people who were prepared to steal in a condition of disorder. In this case an envelope with a €5 ($6) note inside (and the note clearly visible through the address window) was left sticking out of a post box. In a condition of order, 13% of those passing took the envelope (instead of leaving it or pushing it into the box). But if the post box was covered in graffiti, 27% did. Even if the post box had no graffiti on it, but the area around it was littered with paper, orange peel, cigarette butts and empty cans, 25% still took the envelope.

My own reaction to these experiments is mixed. On one hand, of course, it is satisfying to have empirical data that tends to confirm a hypothesis that has helped shape policing over the course of the last 25 years. But other empirical work tends to disprove the broken windows theory, most notably an analysis of crime data in New York City over a ten-year period, as well as results from the Moving to Opportunity experiment, in which individuals from areas with high levels of social disorder moved to more advantaged and orderly communities.

A quick survey of the blogosphere suggests that the headline for the Netherlands experiment is “Broken Windows Works!” or some similar variant. A survey of all the empirical evidence, however, suggests that the story is not nearly that tidy. Moreover, as I’ve previously written on this site, many unanswered questions remain, such as whether constraining disorder is the best use of limited police resources, or how the police choose their targets in a public order campaign, or whether addressing disorder can ever mean more than moving it to a less visible place.


Volume Liver Transplants

Of all the issues raised by the Wall Street Journal’s recent reporting on volume liver transplants, those concerning property law may be the least salient. But the questionable behavior of Amadeo Marcus, the former director of clinical transplantation at the University of Pittsburgh Medical Center (UPMC), reminded me of the infamous Moore v. Regents of the University of California. In Moore, the California Supreme Court decided an individual has no property right in his excised cells. Moore helps introduce students to questions of commodification and inevitably leads to discussions about whether people should be allowed to sell organs and other bodily materials. Regardless of their position on this question, students sometime need to be reminded about the extent to which such bodily materials have already been commodified. The next time I teach Moore, I’m going to use recent events at UPMC to amplify this point:

The transplant program is a source of both profits and prestige that UPMC leverages to attract star doctors and build its other businesses, which include a health-insurance arm. Hospitals charge $400,000 to $500,000 for a liver transplant. UPMC’s transplant program produced $130 million of revenue in its latest fiscal year . . . .

Liver-transplant volume in Dr. Marcos’s first full year [at UPMC] jumped to more than double the volume in the year before he came, according to data from the United Network for Organ Sharing, or UNOS. But the way he boosted it raised questions for some colleagues.

A shortage of transplantable organs from cadavers is a perennial constraint on the number of liver transplants. Dr. Marcos overcame this in part by using organs from so-called expanded-criteria donors — deceased people who had been older or sicker than preferred liver donors. . . . Dr. Marcos put some of these organs into patients who were in the early stages of liver disease. . . . These were patients, [some experts say], who sometimes didn’t need a transplant. . . .

Besides using more expanded-criteria livers, Dr. Marcos sharply increased the number of transplants from living donors. In these, part of the liver of a healthy person is cut off and grafted into a sick patient. If all goes well, both pieces eventually grow to normal size. The procedure is controversial because it could be risky for the otherwise healthy donor.

UPMC did 150 such surgeries while Dr. Marcos was there, according to UNOS. No donors died. However, in 69% of the cases, the recipient had [various medical indicators suggesting] that UPMC was putting some living donors at risk to do transplants on patients in which the risks of the operation may have outweighed the benefits.


Introducing Mark Edwards


I’m pleased to welcome Mark Edwards, who will be a guest during the month of November. Mark has been an associate professor at William Mitchell College of Law since 2007. Prior to that, he was a clinical faculty member and fellow at the University of Wisconsin Law School. Mark also practiced law for five years and clerked for Judge Barbara Crabb in the Western District of Wisconsin.

Mark’s scholarship approaches law as a social practice, with a particular focus on the relationship between law and social relations. An example of his approach is Law and the Parameters of Acceptable Deviance, which was published in the Journal of Criminal Law and Criminology . You can read it here.

Welcome, Mark!


Decreased Giving at Colleges and Universities

Last week I wrote about how the ongoing financial crisis makes it unlikely that Congress will impose mandatory spending requirements on universities and colleges, at least for now. As a political matter, the passage of mandatory spending requirements depends in part on how tuition has increased even as endowments have ballooned. This year, however, endowments are not going to earn impressive returns.

Endowment growth also depends on new gifts, so educational institutions can compensate for decreased yield with aggressive fund-raising. But yesterday’s New York Times contains evidence that gifts are already drying up, as the “financial straits of big boosters hit athletic departments.” I won’t lose any sleep over a university’s inability to “remake its facilities into a Shangri-La for . . . sports, complete with an indoor practice center and new facilities for baseball, equestrian, soccer, tennis, and track and field.” But this is an initial sign of the fund-raising difficulties that universities will face in the upcoming months. With lower (negative?) returns and decreased giving, endowment growth will be down, perhaps dramatically so. This makes the case for mandatory spending requirements all the more difficult.

Of course, it is also true that the financial downturn and the tightening of credit markets will increase the burden of paying for a college education. Therefore Congressional calls to increase voluntary spending are likely to continue, particularly for the nation’s wealthiest colleges and universities.


Why Would An Admitted Freshman Retake the SAT?

In keeping with the U.S. News topic that Geoffrey Rapp is blogging about, here’s a reminder that just when you think you’ve seen every imaginable ploy for gaming the rankings, something new comes along. As reported by the New York Times:

Baylor University in Waco, Tex., which has a goal of rising to the first tier of national college rankings, last June offered its admitted freshmen a $300 campus bookstore credit to retake the SAT, and $1,000 a year in merit scholarship aid for those who raised their scores by at least 50 points.

Of this year’s freshman class of more than 3,000, 861 students received the bookstore credit and 150 students qualified for the $1,000-a-year merit aid, said John Barry, the university’s vice president for communications and marketing. . . .

The offer, which was reported last week by the university’s student newspaper, The Lariat, raised Baylor’s average SAT score for incoming freshmen to 1210, from about 1200, Mr. Barry said. That score is one of the factors in the rankings compiled by U.S. News & World Report.

I bet that even as I type this last sentence, someone out there is already trying to figure out whether a law school could use a similar strategy to raise its LSAT scores.


Recent Financial Events and University Endowments

Accuse me of fiddling while Rome burns, but I’ve been thinking about what the current financial situation means for university endowments. Over the summer I blogged about how endowments are coming under increasing scrutiny from the Senate Finance Committee. The latest round was a panel discussion in early September that was sponsored by Senator Charles Grassley (Iowa Republican) and Representative Peter Welch (Vermont Democrat). Some of the discussion focused on the possibility of enacting mandatory spending requirements, such that institutions would be required to spend five (or more) percent of their endowment assets each year. (You can watch the discussion here.)

I suspect that recent economic events have made the possibility of mandatory spending requirements a non-starter, at least for now. Universities have long argued that they need the flexibility to save more during good times, so that they will have necessary resources on hand during bad times. The current financial crisis has given this argument a saliency that it lacked just six weeks ago. Moreover, it’s not difficult to shock the public conscience when universities sit on multi-billion endowments that grow by more than 20 % in a single year. But the politics will be a bit trickier if university endowment sheets bear any resemblance to my last TIAA-CREF statement.

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Attention All Estates and Trusts Professors (And Pet Lovers)


Jeffrey Toobin has written a must-read article about a $12 million trust that Leona Helmsley established for the benefit of her dog, Trouble. I usually cover the topic of honorary trusts quite quickly, but this semester I’m going to slow down a bit. If nothing else, Trouble’s trust should force students to contemplate the extent to which they are committed to dead-hand control. Beyond the obvious concerns about spending millions on a single dog, as Toobin points out, Trouble herself probably would have been happiest if she had simply been adopted by a dog-loving family.

As an aside, we all know how prickly adult children can get when a step-parent receives the bulk of the decedent’s property. But imagine if the children are disinherited because of a dog . . . .


Necessity and Emotion

A recent article in Newsweek reads like it was pulled straight from a Criminal Law lecture on the necessity doctrine:

Would you drive your boat faster to save the lives of five drowning people knowing that a person in your boat will fall off and drown? Would you fail to give a drug to a terminally ill patient knowing that he will die without it but his organs could be used to save three other patients? Would you suffocate your screaming baby if it would prevent enemy soldiers from finding and killing you both, along with the eight others hiding out with you?

Harvard psychologists are collecting answers to questions like these on the Moral Sense Test, which you can take on-line at The answers are consistent with what one would expect from 1Ls:

[M]ost people say that it is acceptable to speed up the boat, but iffy to omit care to the patient. Although many people initially respond that it is unthinkable to suffocate the baby, they later often say that it is permissible in that situation.

Why these patterns? Cases 1 and 3 require actions, case 2 the omission of an action. All three cases result in a clear win in terms of lives saved: five, three and nine over one death. In cases 1 and 2, one person is made worse off, whereas in case 3, the baby dies no matter what choice is made. In case 1, the harm to the one arises as a side effect. The goal is to save five, not drop off and drown the one. In case 2, the goal is to end the life of the patient, as he is the means to saving three others.

The interesting part is what psychology is teaching us about why we tend to have similar reactions to the questions posed in the Moral Sense Test:

What is remarkable is that people with different backgrounds, including atheists and those of faith, respond in the same way. Moreover, when asked why they make their decisions, most people are clueless, but confident in their choices. . . . Surprisingly, our emotions do not appear to have much effect on our judgments about right and wrong in these moral dilemmas. A study of individuals with damage to an area of the brain that links decision-making and emotion found that when faced with a series of moral dilemmas, these patients generally made the same moral judgments as most people. This suggests that emotions are not necessary for such judgments.

The Newsweek article also discusses new studies of psychopaths that shed light on the role that emotion has on their actions. At least one conclusion is relevant for formulations of the insanity defense:

New, preliminary studies suggest that clinically diagnosed psychopaths do recognize right from wrong, as evidenced by their responses to moral dilemmas. What is different is their behavior. While all of us can become angry and have violent thoughts, our emotions typically restrain our violent tendencies. In contrast, psychopaths are free of such emotional restraints. They act violently even though they know it is wrong because they are without remorse, guilt or shame.